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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Croft v Broadstairs & St Peter's Town Council [2003] EWCA Civ 676 (15 April 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/676.html Cite as: [2003] EWCA Civ 676 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE NASH)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE TUCKEY
MR JUSTICE HART
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JANICE CROFT | ||
-v- | ||
BROADSTAIRS & ST PETER'S TOWN COUNCIL |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
claimant/respondent
MS SUSAN RODWAY QC (instructed by Vizards Wyeth, Dartford, Kent, DA2 6SL) appeared on behalf of the defendant/appellant
____________________
(AS APPROVED BY THE COURT)
Crown Copyright ©
LORD JUSTICE POTTER:
INTRODUCTION
The Factual Background
"An established history of recurrent depression from childhood, continuing into adult life ... She has been from time to time over the years receiving specialist treatment from drugs and from counselling. These difficulties of hers continued throughout the 1970s, the 1980s and the 1990s. She was from time to time seeing a community psychiatric nurse, albeit for counselling, over a period of many years through to the end of 1996 and then again, I find, in early 1997 ... she remained at risk for further episodes of depression or anxiety, certainly from 1997 onwards. She was an individual at increased risk of an adverse psychiatric reaction to stress or, more importantly perhaps in this case, to particular acts or parts of conduct to which she might be subject ... I was addressed at some length by counsel as to whether or not she was suffering from any psychiatric identifiable condition or just plain vulnerable. I have come to the conclusion that she was suffering from the former and it was not just a simple case of vulnerability in a possibly over-sensitive personality, as I touch upon later."
"Was the claimant suffering from a psychiatric condition which rendered her more vulnerable to stress than usual or that normally experienced by an employee with a reasonably heavy workload? The answer to that question must inevitably be yes."
"For this case to succeed the claimant must prove that she was at all material times a [psychiatrically] vulnerable person; secondly, her employers were aware of this vulnerability; thirdly, it was foreseeable that unless they acted with reasonable care the claimant was likely to suffer harm, in other words a breakdown; and they, fourthly, materially caused her breakdown either by doing something no reasonable employer knowing her vulnerability should or would have done, or by failing to do something any reasonable employer should and would have done."
"On the afternoon of Friday 7th November 1997, you visited the office, and I have received reports that your attitude on that occasion caused distress to the Assistant Town Clerk and the Supply Clerk who has been helping out at a particularly busy time.
"I am obliged to inform you that whilst on sick leave you should not be giving orders to, or disrupting the working methods of those staff in work."
"Because of your absence on sick leave this letter serves as a Verbal Warning, which is the first stage of the Disciplinary Procedure. I realise that this is hurtful and difficult for you, and I am willing to meet with you if you require, to talk things through."
"By almost everything the council did from 7 November to 3 December, which is the date of the affirmation letter, the defendant either caused or materially contributed to the claimant's breakdown and I so hold. That left her unfit for work. Given the knowledge that it had had of her vulnerability and her work history, it was plainly foreseeable, in my judgment, that unless it investigated any complaint, which it was fully entitled to do of course, in a just and fair way, Mrs Croft, as a professional woman, would be quite likely to be tipped over the edge and that all-important element of trust and confidence which has to exist between employer and employee would be broken, probably without any prospect of repair.
"Could the defendant have avoided this breach of confidence and trust? Yes, of course it could. How? By the very easy and simple process of saying: 'Well, Mrs Headley, you made these accusations against Mrs Croft, our Town Clerk. She is the Town Clerk but, whether she is or is not, we must obviously speak to her first'. That is a practical illustration of what the council could so easily have done and which it singularly failed to do, failing to observe what I regard in this court as a basic rule of justice and fairness, and in particular in this case its shortcoming is exacerbated by the fact that the claimant, the victim of all this, was a public figure holding public office. By failing to give her an opportunity to be heard before embarking arbitrarily, as I so find, and erroneously upon a disciplinary process which was without foundation, it would foreseeably have led to disastrous consequences in terms of Mrs Croft's, the employee's, emotional vulnerability, and it did.
"The breach, as I have already said, might have been repairable between 7th November and 3rd December, and the damage minimised, if not removed. The defendants chose not to take that course. They must now pay damages for their conduct. The trigger for the breakdown of which the claimant now complains is plainly the letter of 13th November. The claimant's position was exacerbated by the letter of 3rd December. Decisions made by the council as reflected in the minutes probably do not add anything in connection with the claimant's claim but there is, in my judgment, the plainest breach of trust and confidence as between employer and employee."
Liability
"were in possession of information which was the town council's, that Mrs Croft had psychiatric problems, and I find too, they were aware that from time to time she was seeing the community psychiatric nurse probably as late as early 1997, Mrs Hooker's information coming of course primarily from Mrs Cradduck. It is that relationship, that friendship, which proved the fountain for that information ...
"That is not to say that Mrs Croft regarded Mrs Cradduck as her confidante, but the relationship was very much more than employer/employee. I readily accept that Mrs Croft was a private person. Of course she did not disclose details, as I have already made clear, of her early psychiatric history, but Mrs Cradduck was aware of psychiatric problems in outline and, as I hold, probably aware of her visits to the psychiatric nurse".
"I wonder why that was, I ask. The entire sub-committee and therefore the entire Council were therefore alive to the claimant's health problems, even if they had not been on an informal basis because of the relationship the claimant had had over the years with Mrs Hooker and more particularly Mrs Cradduck. I am satisfied that both Mrs Cradduck and Mrs Hooker wasted no time at all in disclosing the information that they had gathered about the claimant's medical history at this meeting, if they had not done earlier, and I have already held that they had".
"Mrs Croft said that she is capable and she is good in a crisis. She described herself as methodical, even painstaking in her approach to work. She said that during a crisis she is better at prioritising than when dealing with day-to-day work. She said that her employers would have seen her as a robust person, as that was the way that she presented herself to others. To the best of her knowledge her employers did not know about her previous psychiatric history, although she had a month off work due to 'exhaustion' in April 1996." (emphasis added)
"Mrs Croft's history of depression would identify her as an individual at increased risk of an adverse psychiatric reaction to stress. However, from the information available to me, it is not clear that her employers have any indication of Mrs Croft's vulnerability, and I can find no reason why she should have been viewed by her employers as anything other than a robust person." (emphasis added)
"I would have said that Mrs Cradduck and I were close friends. Confidences had been exchanged. I had been invited to and indeed attended her daughter's wedding. She had visited my home. I had visited her home. You know, all the usual things that friends do."
"Q You have mentioned confidences being exchanged. Now, we know from the medical records you have had in the past episodes of psychiatric ill health. Now, do you allege that those were amongst the confidences you exchanged with Mrs Cradduck?
"A I truly can't recall but I think it highly likely that she knew that I was seeing a counsellor. I can't recall a particular incident when I said: 'Of course you know I am', but I think she was aware.
"Q More generally, would you say that she would have some knowledge and understanding of your personality, given the relationship you had with her?
"A Yes, she had certainly seen me extremely distressed outside the office.
"Q Moving on then to Counsellor [sic] Mrs Hooker, really the same sort of questions. How well did you know her and what was your relationship with her?
"A It's not as close as it was with Mrs Cradduck. I had a great deal of -- I find it very hard to say that I had. I always had a great deal of respect for Mrs Hooker. A very honest women. Her son and my son were -- they knew each other. You know, we talked about our children and her family problems. I mean, again, confidences had been exchanged. I wasn't so closely involved with Mrs Hooker as I had been with Mrs Cradduck."
"Q And you accept that so far what they say in their written evidence indicates that they had no knowledge of you having a psychiatric history or problems of a psychological or psychiatric nature?
"A There was no need for them to know. I dare say Mrs Cradduck would put it that -- we used to have a saying in the office when a new Mayor came in, they used to say: 'But I don't do things like that', and we would say: 'Ah, but the Mayor does. You may not', and Pat would probably differentiate that -- Pat knew that I was seeing a counsellor, but Counsellor [sic] Mrs Cradduck didn't. But Pat knew -- I am 99% certain that Pat knew I was seeing a counsellor.
"Q I do not want to cross-examine you on witness statements but you have read what Mrs Cradduck says, and she says she had no knowledge that that was going on. You disagree with that, do you?
"A Yes, I do.
"Q If Mrs Cradduck had known that you were seeing a counsellor, from what I have just been through, she would naturally associate that with you seeing a counsellor for family problems, would she not, if you were telling her why you were seeing the counsellor?
"A I couldn't speak for how she would naturally associate anything with anything.
"Q Did you tell her why you were seeing the counsellor?
"A I don't know that I did, because there were certain areas we didn't -- you know, are accepted as being private.
"Q So given that the most on your evidence, she would have known is that you might be seeing a counsellor, and that was some private matter, that would not give her any more information, would it?
"A No, but, nevertheless she did know."
It seems clear that these words "she did know" refer to the point that the claimant had been seeing a counsellor.
"Mrs Croft, is that the sentiment expressed in that letter of not wishing your employers to know about your past medical history ... a sentiment that you held to throughout your employment, is it not?"
"Well, yes, other than how it affected my work and it hadn't."
"Q Finally, can I ask you, Mrs Hooker, when you wrote the letter to Mrs Croft, what did you think her reaction might be to that?
"A I estimated that she would be very upset. I would be very upset, getting a letter like that, but I had hoped that we could talk it over and sort it out. That might have been naive of me, but that is what I had hoped, but I had not acted out of the blue, I had acted after the council had taken advice.
"Q Did you at any stage think that Mrs Croft's reaction would be the reaction that you and I know she had?
"A No.
"Q If that had been your thoughts, what would you have done about sending the letter?
"A I do not know. I think the letter might -- you know, we just cannot see ahead. I think the letter would probably have gone anyway because the council so decided.
"Q Did you know anything specific yourself about Mrs Croft's psychiatric history?
"A No.
"Q Had she ever made clear to you that she was a psychiatrically vulnerable person?
"A No."
"Amongst some councillors there certainly was, that she was working very ... staying in the office very late into the night and there was some concern."
"I do not think that that was a very fair question because I was not aware of Mrs Croft's medical history and there was no way that I could know."
"That is fair, but I think had the council in general known of Mrs Croft's medical history then perhaps they would have decided otherwise, I do not know."
"I was asked the question, if we had known the psychological effect on Mrs Croft, would we have sent the letter, and I am trying to say there is no way we could have known: we were not aware of her past medical history."
Mr Johnson did not thereafter return to the question of the state of knowledge of Mrs Hooker or the council generally.
"Q Can I first of all ask you, please, about your knowledge of the claimant? Did you get to know the claimant very well over the years and what do you say about your relationship with her both on a professional and a friendship level?
"A Initially when I was first elected as a councillor, I just knew her as the Mayor's secretary, but over the course of time I did become -- outside any council business ... we did become friends, quite good friends, really, but always tried to keep the two things apart.
"Q Did you know anything about her private life, and in particular about her personal health issues?
"A No, I did not. I mean, I knew there were certain -- Janice was a very private person really, she did not really discuss a lot of her personal matters, certainly not to me anyway. I knew there had been problems in the family, but I never really knew the details."
"On a general basis, yes, but, as I have already said, Janice, Mrs Croft, did not always confide on private things."
"Q ... We are 6 years on, of course, because the council took nearly 2 years to give a response to this complaint but that is perhaps by the by. Janice gave evidence on Monday that she had mentioned to you that she was seeing a counsellor. You apparently cannot confirm or deny that.
"A ... No I cannot. I am sorry."
"Would you have approved or agreed to sending the letter of 13 November if you had known the claimant's psychiatric history and that she was psychiatrically vulnerable?"
She answered:
"No, I think if that had been my knowledge it would have thrown a whole different light on things."
"I do understand that she did see a counsellor, but I had no idea what that was in connection with."
"I was aware that she had lunchtime meetings from time to time and she told me one day where it was. I considered that her private business."
"All the witnesses from whom I have heard were endeavouring to do their best to be accurate and truthful ... but it should be remembered that each was having to recall events that occurred some 4½ years ago and on some of the topics which were discussed in evidence more than that, namely some 5 or 6 years ago."
"I was left in no doubt at all that Mrs Croft was telling the truth when she said that Mrs Cradduck knew, she thought and believed, of her psychiatric problems. That was Mrs Croft's state of mind. She did not say 'I am certain because I told her'. The way she put it was that she was 99% certain and that says much for Mrs Croft. She gave no specific occasion on which her problems were discussed. It would have been so easy for her in support of her case to quote chapter and verse. I ask myself, cynical as I am, why she should did not choose to do that. The answer is because she was telling the truth and she was accurate in what she said."
"Mrs Cradduck did not say with any emphasis at all that she was never told or was never aware of the claimant's psychiatric condition or her emotional problems ... I am certain - in other words it goes beyond the question of probabilities - that Mrs Cradduck knew and in all probability I suspect Mrs Hooker knew, and it matters not because the personal knowledge of both those witnesses who were leading councillors on the council is the knowledge of the council.
"Of course Mrs Cradduck was not told precise details but she was, I am satisfied, given a general picture. In other words, she was aware of the claimant's psychiatric vulnerability."
"There was also discussion about the claimant's health and a wish not to add more pressure upon her. I wonder why that was, I ask. The entire sub-committee and therefore the entire Council were therefore alive to the claimant's health problems, even if they had not been on an informal basis because of the relationship the claimant had had over the years with Mrs Hooker and more particularly Mrs Cradduck. I am satisfied that both Mrs Cradduck and Mrs Hooker wasted no time at all in disclosing the information that they gathered about the claimant's medical history at this meeting, if they has not done earlier, and I have already held that they had."