Lord Justice Scott Baker:
This is the judgment of the court to which each member has contributed.
Introduction.
- The court has heard consecutively six appeals in cases involving claims for damages for psychiatric injury arising out of stress at work. Four are defendant's appeals; two are claimant's appeals. There are other cases in the pipeline either awaiting permission to appeal or the hearing of the appeal, permission having been granted. It is apparent, despite the decisions of the Court of Appeal in Hatton v Sutherland [2002] 2 ALL ER 1, the House of Lords in Barber v Somerset County Council [2004] 1 WLR 1089 and the guidance laid down in those cases that judges are still finding difficulty in applying the appropriate principles in claims arising from stress at work.
- We would like at the outset to make one or two general observations. Liability for psychiatric injury caused by stress at work is in general no different in principle from liability for physical injury. But, as Buxton LJ put it in Pratley v Surrey County Council [2004] ICR 159 at paragraph 32, having referred to Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388:
"It is not the act but the consequences on which tortious liability is founded. The defendant will be deemed liable for those consequences, not because he has caused them in the course of some careless or otherwise undesirable activity, but only if they were caused by his failure to take precautions against a foreseen or foreseeable and legally relevant danger."
It is foreseeable injury flowing from the employer's breach of duty that gives rise to the liability. It does not follow that because a claimant suffers stress at work and that the employer is in some way in breach of duty in allowing that to occur that the claimant is able to establish a claim in negligence. As Simon Brown LJ put it in Garrett v Camden London Borough Council [2001] EWCA Civ 395, paragraph 63:
"Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tension of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employers ought reasonably to have foreseen and they ought properly to have averted there can be no liability."
- It is apparent that some of these cases are being fought over many days at great expense and that the time and cost are disproportionate to the real issues in the case and the true value of the claim. The length of the hearings in the present cases under appeal, excluding judgment, was as follows:
| Hartman |
2 days |
| Best |
3 days |
| Wheeldon |
3 days |
| Moore |
8 days |
| Green |
3 days |
| Melville was an appeal on a preliminary issue without evidence. |
|
Great care needs to be taken when preparing for trial to isolate the real issues between the parties and to ensure that expenditure on costs is proportionate to what is truly at stake.
- In Hatton the Court of Appeal heard four conjoined appeals all by defendant employers against findings of liability for an employee's psychiatric illness caused by stress at work. One of those cases, Barber, went to the House of Lords where the House overturned the decision of the Court of Appeal and restored the decision of the trial judge. The point on which the appeal to the House of Lords turned was whether the Court of Appeal had been entitled to take a different view from the judge as to whether the employer was in breach of its duty of care to Mr Barber. The House held by a majority of four to one that it had not. Lord Walker of Gestingthorpe, who gave the leading speech, thought the case was "fairly close to the border line." Lord Scott of Foscote, who gave the minority speech, thought the trial judge had set the standard of care at too high a level.
- In Hatton, following detailed discussion in the preceding paragraphs Hale LJ, who gave the judgment of the court, helpfully set out sixteen propositions. We will repeat them because they are useful signposts for judges faced with the, sometimes complex, facts of stress at work cases. They are:
"(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer's liability apply.
(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
(3) Foreseeabilty depends on what the employer knows or ought to know about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
(5) Factors likely to be relevant in answering the threshold question include (a) the nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made for this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? (b) signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from mental illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further inquiries of his medical advisers.
(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and the practicability of preventing it, and the justifications for running the risk.
(9) The size and the scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.
(10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrong doing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.
(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event."
- Lord Scott said at paragraph 5 in Barber that Hale LJ's judgment successfully and accurately expressed the propositions that ought to be applied. Whilst the sixteen propositions were not expressly affirmed in any of the other speeches, with the possible exception of proposition (3) none appears to have been in issue.
- Lord Walker, with whom the other members of the House agreed, referred to paragraph 29 of Hale LJ's judgment which led to her summary in the latter part of proposition (3) that an employer was usually entitled to assume the employee could withstand the normal pressures of the job unless he knew of some particular problem or vulnerability. Paragraph 29 is as follows:
"But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent is he bound to probe further into what he is told? Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive enquires. Generally he is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee's permission to obtain further information from his medical advisors. Otherwise he would risk unacceptable invasions of his employee's privacy."
- Lord Walker said at paragraph 65:
"This is, I think, useful practical guidance, but it must be read as that, and not as having anything like statutory force. Every case will depend on its own facts and the well known statement of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783 remains the best statement of general principle:"
"The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light for what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."
- Lord Scott at paragraph 5 preferred the statement of Hale LJ as a statement of general principle to that of Swanwick J pointing out that Swanwick J did not have in mind the problems of psychiatric illnesses caused by stress. He agreed with counsel for Mr Barber that whilst in these cases the onus was on the employee to alert the employer, such an approach would probably be unwarranted if the complaint was of a system of work which exposed the employee, or others, to a physical danger. He said:
"An employer ought to take steps to understand the implications for the physical safety of his employees of the system of work he is imposing on them. But how can this approach be right where stress caused by a heavy workload is concerned? Most employees can cope. A few may have problems in coping. Only a tiny fraction of them will be at risk of psychiatric illness. And how can the employer even start to consider whether any special steps need to be taken unless the employee keeps the employer informed about his problems? Swanwick J was dealing with a completely different problem. Hale LJ was providing guidance as to the approach to a new problem."
- We can see the force of these observations. We doubt however whether there is any inconsistency between what Swanwick J and Hale LJ were saying. Hale LJ was simply focussing established principle on a new problem. She referred to the "oft-quoted summary of Swanwick J" just three paragraphs later. Lord Walker was not expressing disagreement with anything Hale LJ said but simply sounding a word of caution that no two cases were the same and that Hale LJ's words should not be applied as it were by rote regardless of the facts. Hale LJ was applying established principles to a new type of situation rather than laying down any new principle.
- Mr Hogarth QC, who appeared in the first appeal, helpfully referred us to a number of other "stress at work" claims that have been considered since the Court of Appeal heard Hatton. In Pratley v Surrey County Council [2004] 1CR 159 Mrs Pratley agreed with her employer that a system would be introduced for "stacking" the work she was required to do. The object of the exercise was to prevent her from being flooded with new cases, before she had dealt with other ones and was in a position to take them on. After a three week holiday she returned to find the system had not been introduced. In reaction she suffered a psychiatric illness. The judge found there was a foreseeable risk of injury to her in the long term but not a foreseeable risk of imminent injury. It was argued on Mrs Pratley's behalf that as long as there was a foreseeable risk of injury that was sufficient. The Court of Appeal disagreed and dismissed her appeal.
- As Buxton LJ noted at 174F the claimant's problem was that whereas one type of injury, future damage if work overload was continued, was foreseen and foreseeable, it was another type of injury, immediate collapse, that in fact occurred. And as Mance LJ said at 173E:
"There is a potentially relevant distinction between a risk of psychiatric injury arising from continuing overload in the future, and a risk of collapse in the short-term arising from disappointment of a "cherished idea" developed as a result of a conversation about possible problems if there was continuing work overload over a further period. The harm in each case is psychiatric injury, but not only does it occur by quite different mechanisms, more importantly it occurs at quite different times. It follows that the judge was right to consider whether the risk of immediate collapse was foreseeable, which he held was not."
- In Young v Post Office [2002] IRLR 660 the claimant was absent from work as a result of psychiatric illness. When he returned to work his employers intended he should work at his own pace and continue to do so for as long as he wished. In practice this arrangement was ignored and he worked more intensely and for longer hours than was good for his health. The Court of Appeal concluded that whilst his initial breakdown was not reasonably foreseeable an employer could not simply devise a system for easing an employee back into work; it also had to take reasonable care to ensure that it was adopted.
- Bonsor v RJB Mining (U.K) Ltd [2004] IRLR 164 was another case where the employer succeeded on appeal. The claimant had for 20 years worked in the coal industry before being made redundant. The defendants took her on as their Technical Support and Training Manager with the reference that she "would not be particularly good in a highly stressful environment but she is good at dealing with IT users, training and communication." She had a pre-existing emotional vulnerability but this was not apparent to the defendants. Lord Phillips, MR, said at paragraph 36:
"An employer will be in breach of duty to an employee if the employer subjects the employee to severe pressure of work in circumstances where the employer knows, or ought reasonably to foresee, that this is likely to cause the employee to suffer some form of breakdown which results in psychiatric injury. Happily most employees are sufficiently robust to withstand the stress of a heavy workload. Thus it is normally necessary to demonstrate, before breach of duty can be established, that the employer had particular reason to apprehend the danger that such injury would be caused to the individual employee."
The defendants did not have reason to apprehend the danger and accordingly were not liable when she broke down.
- The last case is Croft v Broadstairs Town Council [2003] EWCA Civ 676. Mrs Croft was the defendant's town clerk. Following the unexpected receipt of a warning letter about her conduct there were meetings and correspondence. Her initial shock and distress were so exacerbated that she was rendered incapable of work through depression. The triggering factor was not the work she was required to do but receipt of the letter which the council accepted would not have been written had it known of her psychiatric problems. The judge found for Mrs Croft. The Court of Appeal held that the fact that two town councillors knew that Mrs Croft had been undergoing counselling was not enough to establish that the council knew of her psychiatric vulnerability. As Potter LJ said, that left the council in a position of employers who were entitled to expect ordinary robustness in Mrs Croft in an employment context, including disciplinary matters in which she had never been involved before. Her breakdown was not reasonably foreseeable.
- In our judgment, none of these cases detracts from the utility of the guidance Hale LJ gave in Hatton and summarised in the sixteen propositions we have cited. On the other hand, what was said in Hatton was not intended to cover all the infinitely variable facts that are likely to arise in stress at work cases. The general principles are to be found in Hatton but we emphasise they need care in their application to the particular facts under consideration. For instance, while each appeal in Hatton involved an employee who had suffered ongoing stress in day-to-day work, the case of Melville, and to some extent Hartman, (see below) involved stress caused by specific traumas.
- With that introduction we turn to the individual cases.
Hartman v South East Essex Mental Health & Community Care NHS Trust.
- This is the defendant's appeal from a decision of Judge Dedman in the Southend County Court on 27 June 2002 when he awarded Mrs Hartman damages and interest totalling £51,620.30 having found against South Essex Mental Health and Community Care NHS Trust ("the Trust") by whom she had been employed at Orchard View children's home as a nursing auxiliary.
- Mrs Hartman has a history of sociological problems. She was sixty at the time of trial in 2002. She had an unhappy childhood and was sexually abused by her stepfather. In 1965 she lost her 17 month old son who died from meningitis. She had an unhappy marriage to her first husband who subjected her to domestic violence. In 1976 she consulted a psychiatrist and was prescribed anti-depressants and tranquillisers. She remained on these drugs for the next ten years. During the 1980s she regularly consulted her GP complaining of depression, irritability, anxiety, headaches, sleep disturbance, stress, high blood pressure, low moods and lassitude.
- In December 1988 she suffered a nervous breakdown on a trip to Germany. She was referred to a psychiatrist who noted symptoms of chronic anxiety and stress. She was referred for anxiety management treatment.
- In October 1989 she was taken on as a nursing auxiliary at Orchard View, an assessment and respite care centre. This was an unqualified post. Before being taken on to the permanent staff Mrs Hartman had been working for the Trust at Orchard View on an agency basis. Orchard View provided for the care and assessment of children with learning difficulties.
- Before she was taken on permanently Mrs Hartmann was screened by the Trust's Occupational Health Department ("OHD"). For this purpose she completed a health screening questionnaire in which she disclosed her breakdown in 1988 and that she was taking a sleeping tablet at night and a tranquilliser during the day. The doctor from the OHD passed her as fit for employment on a full-time basis. She worked a 37½ hour week with additional shifts and sleep-in cover.
- By 1991 she had ceased to take tranquillisers but on 2 February 1996 she reported to her GP that she had been depressed for some time. She was prescribed anti-depressants and after being off work for a couple of weeks reported that she was feeling much better.
- On 22 August 1996 there was a tragedy. One of the children at Orchard View was run over and killed shortly after returning to the home from an outing. Mrs Hartman did not herself witness the accident but she was present at the aftermath, administered first-aid, accompanied the child to hospital and had to deal with the child's family at the hospital. Her GP records for 28 August 1996 indicate that she was very upset and had high blood pressure but by the following month she reported feeling well.
- Following the accident, staff at Orchard View were given two weeks compassionate leave and offered counselling; Mrs Hartman did not take up this offer.
- In late 1996 and early 1997 some changes were made to recruitment policy and working practices at the home which put extra pressure on the staff and significantly increased Mrs Hartman's working hours. The acting home manager, Mrs King, conveyed her concerns about the lack of staff at the home and the pressures staff were facing in a letter to her Line Manager, Ms Ward, on 24 May 1992. Ms Ward passed the complaint on to the Director of Primary Care with a comment that she was very concerned that the staff were putting in very long hours and becoming very stressed and that she could not guarantee a safe working environment for the staff or the clients.
- In March 1998 Mrs Hartman developed bronchitis and was put on sick leave by her GP. She then developed a number of psychological symptoms including panic attacks and sleep disturbance. In February or March 1999 the occupational health doctor supported Mrs Hartman's application for ill-health retirement. His diagnosis was depression, secondary to the accident at work, anxiety and social isolation. Her sick pay ceased on 11 February 1999, but she did not return to work. Her employment at Orchard View was terminated on 20 May 1999.
- Mrs Hartman's psychiatric condition, on which the experts called by each of the parties were broadly agreed, was a mood disorder of moderate severity characterised by depression and anxiety. As to the cause, the judge accepted the view of Dr Hallstrom, called on behalf of Mrs Hartman, that but for the accident and pressures at work, her condition would not have become chronic or lasted so long.
- The critical issue in this case was whether the Trust should have appreciated that Mrs Hartman was at risk of succumbing to psychiatric injury. Mr Andrew Hogarth QC for the Trust correctly identified these as the key passages in the judgment:
"46 I took the view that (Mrs Hartman's) job as in many jobs in the caring services was intellectually and perhaps most of all emotionally stimulating work being very demanding and often I suspect very rewarding for example if one's charges make unexpected progress. Thus I think that it was one of those employment situations which required of the employer a high level of alertness to over work and its ramifications even though the case must be considered within the general ambit of the law of negligence between employer and employee and one should not apply special control mechanisms to stress claims.
47 What should they have taken into account so far as (Mrs Hartman) in particular was concerned? They knew from her original application that she had complained of high blood pressure and anxiety in November 1988 and that she was currently on medication by way of tranquillisers, Temazepam and Diazepam every night and day respectively. I do not think one can ignore the fact that this was a Health Authority and not the occupiers of a scrap yard that might therefore have better insight into medical issues. They were of course aware of the accident and its consequences for the staff and that the staff generally had not taken up the offer of counselling. They were also aware that the general complaint had been made and repeated in Mrs King's long and explicit letter regarding the extent of the overwork and the oppressive nature of the work coupled with the new working practices. When Mrs Ward, their own locality manager expressed the view that the health of the staff was being endangered they did nothing which produced any relief whatsoever. If I ask myself whether the indications were plain enough for any reasonable employer to realise he should do something about (it) I find the answer resoundingly in the affirmative.
48 Preferring the evidence of (Mrs Hartman) and her witnesses to that of Mrs Ward generally I had no hesitation in accepting that she had proved beyond the balance of probabilities that she had suffered injury to her health and that this was attributable at least in part to her work.
49 One had here then a home accommodating in fact at the material time very few staff at which no less than four people including Mr Coombes had left through stress for one reason or another and accepting that such problems are perhaps usually multi-factorial one is bound to say along with Lady Bracknell that to lose one member of staff to stress is perhaps misfortune but to lose three or possibly four is carelessness."
- Mr Hogarth, on behalf of the Trust, submitted that there was no basis for concluding, as the judge appears to have done in paragraph 46, that caring for children with serious learning difficulties is a high risk occupation imposing a higher than normal standard of alertness on employees in respect of the risk that employees will sustain psychiatric injury. We agree. As Hale LJ said in Hatton at paragraph 34:
"The notion that some occupations are in themselves dangerous to mental health is not borne out by the literature to which we have already referred: it is not the job but the interaction between the individual and the job which causes the harm. Stress is a subjective concept: the individual's perception that the pressures placed upon him are greater than he may be able to meet. Adverse reactions to stress are equally individual, ranging from minor physical to major mental illness."
- In paragraph 47 the judge identified three matters which, he concluded, should have alerted the Trust in 1998 to the fact that action needed to be taken to protect Mrs Hartman from risk of sustaining psychiatric injury:
i) knowledge from Mrs Hartman's original application in 1989;
ii) the aftermath of the 1996 accident;
iii) complaints about overwork.
The Information given to the OHD in 1989
- As we have said, when Mrs Hartman applied to the trust for a permanent job as a nursing auxiliary she was already working at Orchard House on an agency basis. She completed a pre-employment health questionnaire which had typed at the top:
"The following information is for use by the occupational health service only."
Then followed immediately underneath in capital letters "PERSONAL AND CONFIDENTIAL." It disclosed she had suffered from high blood pressure in 1988, had had an anxiety attack in November 1988, and was on anti-depressants. The nurse recorded on the second page or reverse of the form in the section headed "comments" that she had discussed Mrs Hartman's anxiety problem with Doctor Bruges, who said that she should pass her as fit "as she seems to be coping very well with her agency work in the unit." She was therefore passed: "fit for employment in this post."
- There are two objections to the judge finding breach of duty or knowledge of this information. The first is that it was not right to attribute to the Trust in their capacity as employers, knowledge of confidential medical information disclosed by Mrs Hartman to the OHD. Some employers require an applicant for employment to submit to a health check by an independent medical practitioner. In this case the Trust referred Mrs Hartman to its own OHD for this purpose. Had the OHD negligently concluded that Mrs Hartman was fit to be employed in Orchard House when she was not, a case might have been made that the Trust was vicariously liable for this negligence. But this was not the claimant's case. The OHD concluded that Mrs Hartman was fit for permanent employment at Orchard House because she was coping well there as an agency employee. No complaint is, or could be, made of this conclusion. 9 years subsequent experience demonstrated that it was sound.
- Medical Ethics Today, p587, published by the British Medical Association, correctly summarises the position:
"The fact that a doctor is a salaried employee gives no other employee of that company any right of access to medical records or to the details of examination findings. With the employee's consent, the employer may be advised of any relevant information relating to a specific matter on a strictly need to know basis, the significance of which the employee clearly understands. If an employer explicitly or implicitly invites an employee to consult the occupational physician, the latter must still regard such consultation as strictly confidential."
- There may be circumstances in which an occupational health department's duty of care to an employee requires the department to seek an employee's consent to the disclosure to the employer of information that the employer needs to know if proper steps are to be taken for the welfare of the employee. No such case was advanced in the case of Mrs Hartman. There was no basis upon which the judge could properly conclude that the Trust was fixed with knowledge of the confidential information disclosed by Mrs Hartman to the OHD.
- The other objection to the significance that the judge attached to the information disclosed to the OHD is that this was old history. So far as concerned her ability to withstand the stresses of her job, 9 years of apparently trouble free service was of much greater significance than information provided to the OHD when she was first appointed. Whilst Mrs Hartman went to her GP in 1996 complaining of depression, the Trust was not told of this and she recovered quickly. Between 1989 and 1998 nothing occurred which should have indicated to the Trust that Mrs Hartman was psychologically vulnerable.
The 1996 Accident.
- The judge said: "They were of course aware of the accident and its consequences for the staff and that the staff generally had not taken up the offer of counselling." Unfortunately he did not explain why the accident should have led the Trust to conclude that Mrs Hartman was at a foreseeable risk of psychiatric injury. In truth there was no evidence that could lead them to such a conclusion. The accident occurred 18 months before Mrs Hartman's breakdown and there was nothing in that period to suggest that she was vulnerable. Neither expert suggested that Mrs Hartman's reaction to this accident should have put the Trust on notice that she was at risk. Dr Hallstrom said in evidence in chief:
"The death of any child, if you have even some peripheral involvement with it, is traumatic. For her, bearing in mind her vulnerability, it would have been additionally traumatic. Having said that, she coped with it reasonably well at least superficially, and carried on working. It was obviously an additional stressor."
He accepted in cross-examination that she appeared to have recovered from the accident without too much difficulty.
- It is not clear what significance, if any, the judge attached to Mrs Hartman's failure to take up the counselling that was offered. He referred to her statement to the Trust's expert that she was too traumatised by the event itself and that anyway she would probably have said she did not need it. If the judge concluded with hindsight, that her failure to take up counselling was because of her vulnerability he does not explain why, in the absence of other knowledge that she was vulnerable, the Trust should have drawn this conclusion. The natural conclusion to draw from the fact that she did not avail herself of counselling was that she did not feel that she needed this.
Complaints about overwork
- The third criticism of the Trust in paragraph 47 of the judgment is that they failed to pay regard to Mrs King's letter, which made a detailed complaint about the extent and oppressive nature of overwork coupled with the new working practices, or to Ms Ward's expressed view that the health of the staff was being endangered.
- The judge noted that Mrs King's complaints and Ms Ward's comment related to the demands on the qualified staff, whereas Mrs Hartman was unqualified (see para35), but he said he could not ignore the likely knock-on consequence of such a debilitating effect on the staff generally. This was not a satisfactory basis for concluding that there was a foreseeable risk of psychiatric injury to Mrs Hartman. In the absence of signs that Mrs Hartman was particularly vulnerable, there was nothing to indicate she would not cope with the work that she was required to perform.
- In summary the three matters on which the judge held should have led any reasonable employer to realise he should take action to protect Mrs Hartman were not capable of supporting that conclusion.
- The judge's flippant comment in paragraph 49 was not appropriate. The words of Oscar Wilde are no authority on any aspect of the law on liability for injury caused by stress. The judge failed to consider whether the fact that psychiatric injury had been suffered by other staff members was evidence that such injury was reasonably foreseeable in the case of Mrs Hartman. Had he done so he would have concluded that the injuries were not indicative that the Trust was imposing working conditions that were driving its employees into mental illness. Mrs King's illness was caused by her personal reaction to the accident and Mr Coombes' stress related to an accusation which caused him to be investigated by the police.
- While the judge said that he had no hesitation in concluding Mrs Hartman had proved on balance of probabilities she had suffered injury to her health and that this was attributable at least in part to her work, he failed to identify in what respect her injury was attributable to breach of duty on the part of the Trust. Mrs Hartman filed a respondent's notice contending that even if the judge made no adequate finding of why the Trust were in breach of duty we should nevertheless conclude that it was because of inadequate staffing at the home. We are unable to uphold the decision on this or any other basis. The judge should have rejected Mrs Hartman's claim on the ground that it was not reasonably foreseeable to the Trust that she would suffer psychiatric injury and, accordingly, they were not in breach of duty to her.
Damages
- Mr Hogarth also challenged the judge's approach to the award of damages for loss of earnings. The judge awarded Mrs Hartman £7,500 for pain suffering and loss of amenities having discounted the figure by 25% to take account of her pre-existing vulnerability. He also awarded her £34,319.33 for loss of earnings "assuming as I find to be the case that there was no reason to assume that some other physical infirmity would have intervened to prevent her going the final mile as it were in working and that she would have been likely to retire at the age of 60".
- We cannot reconcile the judge's discount of general damages with his failure to make any discount for contingencies that might have prevented her from continuing to work. It is true that the court was concerned with a relatively short period; Mrs Hartman had her breakdown in the spring of 1998 and was 60 in December 2001. But on the facts of this case there plainly should have been a discount (Mrs Hartman's counsel did not suggest otherwise at the trial) and it is difficult to see why the discount should be other than the same as was applied to the general damages i.e. 25%. However, as in our judgment the appeal on liability succeeds, the judgment must be set aside and the discount on damages is a matter of academic interest only.
Best v Staffordshire University
- This is Staffordshire University's ("the university") appeal against the decision of Mr Recorder Evans in the Telford County Court on 18 September 2003 when he gave judgment on liability for Mr Best.
- Mr Best was in 1986 employed as a senior lecturer by the university at its school of computing. His duties from the late 1980s included preparing the timetable for the lecturers in the computer sciences department as well as doing his own lecturing and tutoring. In February 1998 he broke down at work. His GP records for 13 February 1998 record this and that he had symptoms of anxiety. He was prescribed anti-depressants. He was off work for the following six months but returned between August 1998 and January 1999. Thereafter, apart from a few days, he did not work for the university again. He retired on the ground of ill health in September 2000 aged 46.
- Mr Best makes no criticism of the university's conduct after his breakdown in February 1998. His claim is based on the university's alleged negligence before that date. Mr Best's claim as described in his particulars of claim is that the extra work over and above that of a senior lecturer and personal tutor could not be completed in normal working hours so that he had to work late into the night and at weekends. He alleges that he complained of his workload but that the university's only response was to provide him with a computer for use at his home. Following vehement demands for assistance an administrative assistant was recruited but was then diverted to other things. Mr Best alleges that over the years he developed headaches, chest pains and indigestion. In 1991/92 he visited his doctor and was prescribed medication. His condition worsened and eventually he broke down in February 1998.
- The kernel of the way the case is put in the particulars of claim is that it should have been plain to the university from Mr Best's medical record and the nature of his written complaints about his excessive workload that he was a person who was vulnerable to anxiety, stress and kindred conditions. At a late stage of the trial there was an amendment alleging that during 1994/95 a specific complaint of illness was made by Mr Best to Mr Leigh, a colleague, and passed on by him to Mr Leigh's Line Manager, Dr Topping, and the management team. We refer to this in more detail below.
- In the course of a very lengthy judgment, in which it is difficult to discern any clear structure, the Recorder cited extensively from Hatton. The University contends that he erred in applying the principles in Hatton to the facts before him. In particular, it is alleged that his decision on foreseeability was vitiated by two significant misunderstandings of the facts.
- The Recorder's conclusions can be summarised as follows. Mr Best was placed under an accumulation of real and increasingly unreasonable work pressures. These well exceeded what he had been employed to do and what could be expected of him. The university knew of the excessive burden on Mr Best and the stress on its staff generally. It had enough information to realise he was at a real and immediate risk of a breakdown in February 1998. His breakdown was therefore reasonably foreseeable. The university should have provided more administrative support.
- The Recorder heard conflicting psychiatric evidence. He preferred that of Mr Best's psychiatrist Dr Sheikh, whose view was that he had a pre-existing psychiatric vulnerability, as against that of the university's psychiatrist Professor Wilkinson, who thought Mr Best had a pre-existing psychiatric disorder. The Recorder found that the stress suffered by Mr Best contributed materially to his breakdown. The parties agreed that the contribution that this made to his breakdown, as opposed to his own vulnerability, was 30%, on the basis of the evidence of Dr Sheikh. Dr Wilkinson's figure, had it been relevant, would have been around 5%.
Was Mr Best's breakdown reasonably foreseeable?
- The Recorder found that Mr Best's breakdown was reasonably foreseeable. He appears to have based this conclusion on evidence of three positive indications of harm to Mr Best's health:
i) An internal memorandum dated 18 May 1995 from David Leigh to the university's modular framework committee stating his concern that the timetablers were only able to complete their task at 'excessive and unjust personal cost'
ii) Oral evidence from Mr Best that Mr Leigh had suggested to his fellow timetabler that she should 'watch' Mr Best as he was concerned about him. Also there was evidence from Mr Best that he had mentioned his medical problems to his colleagues, including Mr Leigh
iii) Oral evidence from Mr Leigh that he had discussed Mr Best's situation with senior colleagues including Mr Best's line manager, Dr Topping.
- The Recorder declined to find that this evidence was undermined by a number of contrary indications of lack of harm urged by the university:
i) Mr Best's failure to disclose any health concerns in his annual appraisals.
ii) His application for promotion to the role of principal lecturer in January 1997 when he answered the question 'Do you have or have you had any medical condition which is relevant to your ability to do the job for which you are applying' with 'No'.
iii) The absence of any medical record of a depressive episode in Mr Best's GP's notes before the breakdown.
iv) Evidence from the university's witnesses, Messrs Slade and Low, who were colleagues of Mr Best, that neither had noticed any change in Mr Best's health before his breakdown came as a 'bolt from the blue'.
- Mr Platt for the University attacked the Recorder's treatment of both the positive and the negative evidence as to foreseeability in a number of respects:
i) He submitted that the memorandum of David Leigh was not capable of constituting written evidence of impending harm to Mr Best's health. We agree that the reference to 'excessive and unjust personal cost' to the timetablers was i) generic rather than specific to Mr Best, ii) written nearly three years before his breakdown and iii) impossible to interpret as a health warning.
ii) He submitted that the Recorder relied on evidence of oral warnings which were unspecific both as to time and context. We agree with Mr Platt that, taken at their highest, they did not amount to a warning of imminent risk of breakdown and that issues of stress, simple overwork and health appear to have conflated. In one respect the Recorder misquoted Mr Best's evidence to the effect that he had reported to his fellow timetabler that he had suffered stress for 12 months up to 1998, whereas he had in fact given evidence that he mentioned the matter 12 months before 1998. We agree that clear findings about the dates of the complaints were needed, particularly as Mr Best was not making any criticism in respect of the period after he returned to work in August 1998, and it seems likely that some, at least, of these complaints were made during this period.
iii) The finding that Mr Leigh had drawn to the attention of Dr Toping that Mr Best was not always in the best of health and that he should keep an eye on him was evidence adduced at a late stage in the proceedings following amendment to the pleadings. Mr Platt argued that the amendment was particularly prejudicial as Dr Topping had died and was therefore unable to refute Mr Leigh's oral evidence as his draft witness statement suggested he would have done. We do not consider that the decision to allow the amendment fell outside the Recorder's wide ambit of discretion and he was entitled to accept the evidence of Mr Leigh. But the Recorder does not refer to the timing of this communication which was alleged in the amendment to have taken place in 1994/5, nor does he consider what significance, if any, this had to a breakdown in 1998.
- Turning to the Recorder's treatment of what Mr Platt described as 'hard spots' in the evidence pointing away from foreseeability of harm to Mr Best, the most serious attack relates to his misunderstanding of the facts:
i) The Recorder commented at page 45 of his judgment that it was 'strikingly odd' that the annual appraisals were not available. In fact the appraisals for 1996 and 1997 were in the trial bundles and referred to in Mr Best's evidence and cross-examination. They showed no hint of any impending crisis but suggested only the need for more consistent administrative assistance in the timetabling process. The Recorder's misunderstanding was corrected by Mr Platt in his final submissions. We cannot understand how the Recorder came to overlook this important evidence.
ii) Mr Best applied for promotion only a year before his breakdown. The evidence of Mr Low for the University was that Mr Best's burden of responsibility would have risen in the post that he was seeking and he would have retained his responsibility for timetabling. Mr Best gave evidence that he had not thought at the time that his mental state affected his ability to do the job and that he had hoped that his teaching load would have dropped. The Recorder accurately found that Mr Best liked being in command of timetabling; while it was complex he found it stimulating; his complaint related only to lack of support. Unhappily, the Recorder was under the erroneous impression that Mr Best's application for promotion was made in 1992 and not 1997, possibly confusing it with an earlier application in similar terms. He thus dismissed its significance because he thought it was so far removed in time from the breakdown. We agree with Mr Platt that this error seriously undermines the Recorder's finding on foreseeability. Mr Best's own assessment of his health at that time was consistent with the absence of visits to his GP and with the other evidence that his mental breakdown was a bolt from the blue.
iii) The Recorder failed to mention anywhere in his judgment the fact that the experts agreed that there was no record in the GP's notes of a depressive episode or anything which might have caused concern about Mr Best's mental health before February 1998. On Mr Best's pleaded case, the University was not notified of any depressive state or mental illness before that date and he accepted in evidence that his breakdown was a sudden and totally unexpected event. No finding was made in relation to this, nor did the Recorder refer to the fact that the agreed medical evidence was that a risk of breakdown was not medically foreseeable. We agree that these were plainly relevant matters on the issue of foreseeability and should have been considered as part of the 'whole picture', at which the Recorder had correctly directed himself to look at on page 47 of his judgment.
iv) Finally, the Recorder made no reference to the relevant evidence of Messrs Slade and Low except to say that Mr Slade's perception that there were no problems with Mr Best's health before the breakdown 'is not the proper perception as I find it'. This was not adequate treatment of that evidence.
- For these reasons we find that the Recorder's finding that Mr Best's breakdown was reasonably foreseeable to the university is not sustainable. That finding was vitiated by the errors of fact, in particular the significant error as to the date of the application for promotion, and was contrary to the weight of the evidence. There were no sufficient indications of impending harm to Mr Best's health arising from stress at work. The Recorder stated the correct test but then failed to apply it properly to the facts of the case.
Counselling
- Hatton makes clear that the availability of counselling is a relevant matter to consider in stress at work cases: 'An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty'.
- In this case the university provided a counselling service. Mr Best was aware of it and had been on counselling courses but he did not use the service. His evidence on cross-examination was that he may have been naïve enough to think he did not need counselling at the time.
- This evidence has relevance to the issue of foreseeability. The university made an obvious point: if Mr Best did not recognise that he needed counselling, how could his employers be in a better position? The Recorder did not deal with this argument.
- The availability of counselling is also relevant to the steps the university should have taken. Hatton suggests there is unlikely to be a breach of duty where such a service is offered. The Recorder merely commented that very little evidence had been adduced on the service and that there was a basis for inferring that the university had been told it needed improvement. He regarded the availability of counselling as irrelevant on the basis that it was not clear that counselling would have helped Mr Best; what was required was more administrative support.
- We agree that on the facts of this case the availability of a counselling service was not fatal to Mr Best's case. The outcome of Mr Best's claim does not depend on any failure on his part to take up whatever counselling service was available. It is, however, a factor for which the Recorder should have given credit when considering whether the university was in breach of its duty of care.
What might the University have done?
- Linked to the significance of counselling is other guidance on breach of duty in Hatton. Hale LJ noted at page 43 that in all cases it was necessary to identify the steps that the employer both could and should have taken and that he could only reasonably be expected to take steps which were likely to do some good. She said this was a matter on which the courts were likely to require expert evidence.
- In this case there was no expert evidence that more administrative help would have made any difference to the course of the breakdown Mr Best suffered. Mr Platt made the valid point that this was especially important as it was not in dispute that the breakdown was 70% due to non work-related causes. Instead the Recorder simply made a finding that the university should have provided more administrative support for the job. We consider that at the very least he needed to tailor to Mr Best's circumstances the administrative assistance which he considered was required, taking into account the fact that much of the timetabling work was agreed to be non-delegable, was seasonal with peak periods before the start of each term and was taken over by one person when Mr Best left.
- One of the curious features of this case is that the Recorder, before the commencement of submissions at the end of the case, clearly identified the key questions and expressed his apparent concern about important aspects of the evidence. He referred to the requirement that indications of impending harm to health arising from stress at work should be plain enough for any reasonable employer to realise that he should do something about this. He also referred to that part of the medical evidence which suggested that Mr Best's breakdown in February 1998 was a shock to everybody. And yet when he came to give judgment on the following morning he failed to answer the key questions satisfactorily in the light of the evidence.
- In our judgment the Recorder should have dismissed Mr Best's claim on the ground that his health breakdown in February 1998 was not a reasonably foreseeable consequence of the conditions under which the university required him to work. The university's appeal is accordingly allowed.
Wheeldon v HSBC Bank Ltd
- This is the defendant's ('the Bank') appeal from a decision of His Honour Judge Waine in the Chesterfield County Court on 20 November 2003 whereby he awarded Mrs Wheeldon damages of £18,861.71. This sum included interest and £3,500 for pain suffering and loss of amenities; the balance represented loss of earnings.
- Mrs Wheeldon was born on 16 March 1950. From 1982 until she left on 6 October 2000 she was employed by a bank, first the Midland Bank and then after it was taken over in the mid 1990s by the Bank. Her official title was senior customer services representative.
- In March 1994 she moved from the Victory Road branch in Derby to a smaller sub-branch in Alvaston. When she was there she was in charge but she ran the bank with another lady, Mrs Cope, under a job-sharing scheme. Each worked for two days one week and three days the next. Sometimes, for example during school holidays, Mrs Wheeldon would work a full week and she would also work overtime if required. She averaged 17½ hours per week. Her day started at 9 am. She would go first to Victory Road, then by taxi to Alvaston and then return at the end of the day to Victory Road. There was always one other employee at Alvaston and on Mondays and Fridays there was additional assistance from employees called key time workers. These initially worked six hours on each of these days, but in 1996 this was reduced to four hours.
- Alvaston was a busy branch carrying on the day-to-day functions of a bank, but without the overall administrative and managerial responsibilities of a larger branch. Unlike many smaller branches it had a cash machine which had to be serviced. Mrs Wheeldon used to spend about an hour on bank matters at home each weekend. Every working day was busy and overtime was almost invariably required because there was not enough time during the allotted hours to do all the work. She had to deal with constant questions from customers and complaints about the time they had to wait to be served. Pressure of work was exacerbated in February 1997 by the installation of new computers and in 1998 by the closure of another branch nearby. Other employees gave supporting evidence of the pressure of work at Alvaston.
- Mrs Wheeldon complained to her line manager from time to time about pressure at work. In early 1997 this was Mrs Bond. Mrs Wheeldon spoke to her about her concerns. She put these into writing on 7 November 1997. Her evidence was that nothing really changed.
- In August or September 1999 Mrs Wheeldon had a panic attack at work and went to see her GP. She told him that she had suffered from stress for upwards of two years and that she had not been coping at work for several months; she was not eating and had difficulty sleeping. A recent holiday had not improved matters. Her GP said she was probably depressed and signed her off work for three weeks due to stress. In October 1999, after she returned, she again broke down with problems with sleep and headaches.
- She was prescribed anti-depressants. She continued to see her GP in October and November complaining of migraines but these improved with the prescribed drugs. By December her GP described her as just about coping. In January 2000 she returned to her GP complaining of lower back pain.
- The bank was aware of her breakdown in the late summer of 1999 and that this was due to stress. The medical certificate issued by her GP made this clear. Furthermore Mrs Wheeldon's husband telephoned Mrs Bond and made her aware of Mrs Wheeldon's problems. Mrs Bond discussed matters with Mrs Wheeldon and offered her a posting at Victory Road. However, Mrs Wheeldon preferred Alvaston and, after a short period at Victory Road, returned there. Following the next breakdown in October 1999 Mrs Bond arranged for Mrs Wheeldon to do three weeks at Victory Road and also contacted the Bank's occupational health department. The occupational health department wrote to her GP. He responded in about mid December 1999 saying he thought Mrs Wheeldon was depressed and that her symptoms would improve if she took anti-depressant therapy. He added that her depression had probably been triggered by the situation at work and it was likely that her mental health would continue to be adversely affected unless the situation could be changed. Reduction in hours would help if it was accompanied by a reduction in duties. The opinion of a consultant psychiatrist might be helpful in assessing her needs for further treatment.
- Mrs Wheeldon was seen by the occupational health department on 6 January 2000. Their report indicated that Mrs Wheeldon believed she was suffering from stress due to overwork and understaffing. It was noted that she wanted to be considered for retirement on the grounds of ill health. This was a possibility she had first raised with her GP the previous October. On 10 January the occupational health manager wrote to Mr Whigham, who had taken over from Mrs Bond as Mrs Wheeldon's Line Manager at the end of 1999, setting out the situation. The letter referred to the possibility of early retirement and the need to obtain a psychiatric report to address ill health retirement issues. A report was then obtained from Dr England. She said:
"It is difficult to be sure whether Mrs Wheeldon would be coping with the demands of her occupation better if she were less depressed, although this is a reasonable assumption. Certainly, however, I believe it would be worth looking into the demands that the work is placing on her and whether this is appropriate, given her position and level of experience at work. There is no doubt that her work appears to have precipitated and is indeed perpetuating her mental health difficulties."
She added that there was a need for appropriate treatment for her depression and an investigation of the nature of her work difficulties followed by a reassessment of the retirement issue in six months. Finally, she added:
"If neither of these recommendations is pursued, there is a strong chance that her mental health will deteriorate. She has been able to cope without absence from work until September 1999. Further absences are almost certain unless her condition is improved as recommended above."
- Mrs Rowe, of the occupational health department, sent a note to Mr Whigham dated 9 March 2000 saying she had forwarded a copy of Dr England's report to Mrs Wheeldon's GP and that before a decision could be made on ill health retirement she should be further assessed by a consultant psychiatrist. She also pointed out that "her depression appears to have been precipitated by work factors" and that it was advisable that the nature of her work difficulties be discussed.
- Neither Mrs Wheeldon's hours nor her duties changed but she saw her GP again in April 2000. He thought she was coping at work and decided not to refer her for psychiatric assessment. This was a clinical decision about which no complaint is made. Mrs Rowe spoke to Mrs Wheeldon and scheduled a review for August.
- Mrs Wheeldon was off work from 9 May to 20 July for an operation on her foot. Her return to work coincided with an inexperienced helper at Alvaston and the presence of workmen installing a new till. By August, she started to suffer panic attacks again. She telephoned the occupational health department to discover what was happening about her further assessment and was told that her file had been closed.
- In relation to the facts the judge made the following material findings:
i) Mrs Wheeldon was a very diligent person and one who was anxious to meet all her responsibilities. She allowed this to get on top of her. It was a very busy branch but staff could just about cope and the pressures were not as unremitting as Mrs Wheeldon believed they were.
ii) Matters were handled properly by the Bank until early March 2000. At that point, when Mrs Rowe from the occupational health department contacted Mr Whigham, the Bank had the clearest possible knowledge of Mrs Wheeldon's mental problems and their association with conditions in her workplace. The judge stated at paragraph 27:
"It is, however, at about this stage, the conduct of the bank went awry. The main blame must fall on the shoulders of Mr Whigham. I exonerate him from doing anything intentionally wrong, but in my view he omitted to do what was right in circumstances where he should have been much more positive, given the information he had from OH. There appears to have been some limited discussion with (Mrs Wheeldon) in which he offered the advice that she could come and speak to him. He never really took any further initiative despite the significant reports he had from OH. His attitude and his evidence was that, if she had a problem, he expected her to come and speak to him. A reasonable employer, in my view knowing what the bank knew, would have taken (Mrs Wheeldon) aside and had a full discussion with her about what could be done, or perhaps importantly, what could not be done. They should have made it clear that if she was unwell and could not cope, they needed to know for her own good. He accepted that his approach was "you come to me"."
iii) The Occupational Health Department had closed Mrs Wheeldon's file following a conversation with Mr Whigham on 8 August 2000 in which he said she was apparently coping. He failed to take proper steps to discover whether she was in fact coping and did not tell her that her file was closed.
iv) The Bank had in place a perfectly good system to enable it to act appropriately. The system failed because one individual, Mr Whigham, failed to act on the information he had received.
The judge rejected the contention of the bank that Mrs Wheeldon had been determined to resign all along.
- In summary, the judge found that there were clear signs of impending harm to Mrs Wheeldon's health from March 2000, that the Bank was in breach of its duty of care when Mr Whigham failed to discuss what could be done with Mrs Wheeldon but instead closed her file and that her illness was attributable to the stress of her work.
- Before us Mr Stokell on behalf of the Bank first submitted that the judge should have found that Mrs Wheeldon did not suffer any psychiatric injury. As to this there was disputed medical evidence. Mrs Wheeldon relied on Dr Cheetham, a registrar in general adult psychiatry. The Bank relied on Dr El-Assra a consultant psychiatrist with particular interest in somatisation disorder. The judge preferred the evidence of Dr Cheetham whose opinion was that Mrs Wheeldon had a vulnerable personality and that due to her work stress she suffered a mild to moderate depressive attack associated with panic attacks. The judge rejected Dr El-Assra's opinion that Mrs Wheedon's mental problems were no more than part of a long standing somatisation disorder and had nothing to do with any problems at work.
- The judge gave compelling reasons for preferring Dr Cheetham. He concluded that he approached the case with a more open mind than Dr El-Assra, who tried to make the history fit the theory rather than looking at the history and then deciding on the correct diagnosis. One of the characteristics of somatisation disorder is an inability on the part of the sufferer to stick with a job or with relationships. Mrs Wheedon had been with the bank for over 20 years, had had very little time off work and had a long enduring second marriage. Furthermore, many of her physical problems were shown to have an organic cause. In our judgment the judge's preference for Dr Cheetham's evidence is unassailable. In a sense, however, the label placed on Mrs Wheeldon's condition is of little materiality if, as Mr Seabrook for Mrs Wheeldon argues, the true position is that she was just about coping until Mr Whigham failed to take the action he ought to have done and this tipped her over into a depressive episode with associated panic attacks. The judge put it this way at paragraph 46 of his judgment:
"The Bank failed to act upon their own medical evidence and this allowed (Mrs Wheeldon's) work stress to continue. So her depression, which had commenced before the Bank's state of knowledge, continued and flourished after that state of knowledge."
- Mr Stokell argued that nothing really changed and that Mrs Wheeldon did not suffer any identifiable psychiatric injury. She ceased work, so he suggested, because she had made up her mind she wanted to retire. There was no adequate evidence, submitted Mr Stokell, that the Bank's conduct added anything to Mrs Wheeldon's condition. We do not agree. The manner in which the Bank caused Mrs Wheeldon's injury appears plainly from the judgment. When she returned to work Mrs Wheeldon was in a marginal situation. She was just, but only just, able to soldier on. The failure to give the help that had been recommended was the last straw – the straw that broke the camel's back. Mr Whigham knew that the demands her work was placing on her needed to be looked into. That had been recommended by Dr England the previous spring. But when Mrs Wheeldon returned to work he closed her file. It is perhaps understandable that he at first took no action when he first took over from Mrs Bond because Mrs Wheeldon very soon had a period off work for her foot operation. The critical time was when she returned in July. This is when the operative error occurred.
- In our judgment the judge was entitled to conclude that Mr Whigham's failure to take action to reduce the stress on Mrs Wheeldon had the effect that her depression "continued and flourished". The Bank's breach of duty occurred because Mr Whigham failed to sit down and discuss with her the various options such as training her for a different post at Victory Road or taking her away from Alvaston until she was better able to cope with the stresses at that branch. The judge was in our view entitled to find on the basis of the medical evidence that this breach of duty caused Mrs Wheedon to suffer an identifiable psychiatric injury.
- Mr Stokell further submitted that if Mrs Wheeldon did suffer psychiatric injury, this was not caused by stress at work. He submitted that Dr England's report was based in part upon a false foundation. Whereas Mrs Wheeldon had initially suggested she had to spend the whole of every Sunday afternoon reading bank literature or watching bank videos she later revised this in her evidence and said that this occupied about an hour a week. Having read carefully the whole of Dr England's report we do not think Dr England's impression about the amount of work Mrs Wheeldon used to take home was central to her opinion and recommendations. Her main conclusion was that Mrs Wheeldon's depression was at the root of her failure to cope with the demands of her job. Dr England had, one must bear in mind, been asked to assess the impact of the present diagnosis on her ability to work and what reasonable accommodations the Bank should be considering to ensure Mrs Wheeldon's state of health did not deteriorate.
- We have referred to Mr Stokell's submission that Mrs Wheeldon gave up work because she had decided to resign. The judge rejected this argument and we see no reason to interfere with this finding. Whilst early retirement on the ground of ill health was an option that Mrs Wheeldon had asked the Bank to consider, what then happened was that she had increasing difficulty in coping with her symptoms so that in the autumn of 2000 she felt she had no choice but to resign.
- Reading the whole of the judgment it is perfectly clear why the judge was satisfied of the link between the Bank's breach of duty and Mrs Wheeldon's psychiatric injury. As he pointed out it will only be in exceptional circumstances that someone working for 2 or 3 days a week for limited hours will make good a claim for injury caused by stress at work. But despite the unusual circumstances the ordinary principles of employer's liability fall to be applied. The particular kind of harm that Mrs Wheeldon suffered (a moderate depressive episode with panic attacks) was reasonably foreseeable. Indeed, the threat to Mrs Wheeldon's health was in fact foreseen. The Bank failed to act on its own medical advice. It failed in its duty of care. But for that breach of duty her symptoms would not have reached the stage where she was unable to cope any longer. The appeal against liability must be dismissed.
Quantum
- There is no complaint about the figure of £3,500 that the judge awarded for pain, suffering and loss of amenities. Mr Stokell does, however, complain that loss of earnings was awarded for a period as long as 2 years and that the judge did not give credit for the money that Mrs Wheeldon earned in December 2002.
- The judge at paragraph 48 of his judgment pointed out that at the date of the trial in the autumn of 2003 Mrs Wheeldon had still not returned to work but that she had limited her claim for loss of earnings to 2 years. This was on the basis of the time she would have needed (i) to make a full physical recovery and (ii) to appreciate she was better and then to find another job. The judge observed that such a transition, had she chosen to make it, would have been quite difficult. He said he had initially thought 12 months was the appropriate period for loss of earnings but on reflection revised his view upwards. He went on to say that the precise figure of loss to follow from his finding would need to be agreed between the parties and that in default of agreement the matter could be re-listed.
- There was evidence that Mrs Wheeldon had worked for a couple of days a week for about a month in late 2000 but there was no evidence of what remuneration she had received for doing so.
- The Bank did not ask for the case to be re-listed and a figure, inclusive of interest, was agreed. In our view the judge was fully entitled on the evidence to conclude that 2 years was a reasonable period in which to recover and secure alternative employment. Mrs Wheeldon's age and employment background were relevant as well as her medical condition. The judge necessarily had to apply a broad brush in deciding on the appropriate period. The earnings Mrs Wheeldon received for the 8 days or so that she worked (and there was no evidence of what they amounted to) were too insignificant to feature in what was necessarily a broad brush exercise.
Conclusion
- Mrs Wheeldon had problems coping at work. When her mental condition deteriorated she was off work for a period. Following her return, the Bank was made aware of her condition by its own occupational health department and the steps it needed to take in the light of that condition. It failed to take those steps and her psychiatric injury resulted. The judge correctly applied the law and there is no basis for interfering with his decision.
- For these reasons the Bank's appeal is dismissed.
Green v Grimsby & Scunthorpe Newspapers Ltd.
- Mr Green started work with the defendant newspaper publisher when he was 17. Over 40 years later, on 8 June 1999, he left work for the last time suffering from what the psychiatrists subsequently agreed was a major depressive episode of moderate intensity. After a three day trial in the Great Grimsby County Court Mrs Recorder Stocken dismissed Mr Green's claim. She did so principally on the basis that the employer could not have been expected to foresee Mr Green's psychiatric illness. It is said that she applied the wrong test, reached the wrong conclusion and failed to deal adequately with the other issues which arose.
- From 1989 Mr Green worked as the chief sub-editor in the features department. His complaints stem from September 1998 when his department took on the sub-editing of a monthly magazine, Bygones. At the end of that year the paper decided to reorganise its working practices with the aid of a new computer system. The head of Mr Green's department, Mr Farnsworth, was responsible for introducing this system. Sub-editing Bygones and the absence of Mr Farnsworth increased Mr Green's workload. His normal working hours were 8.30 a.m. to 4.30 p.m. with an hour off for lunch. His increased workload meant that he had to work through his lunch-hour and occasionally after 4.30 p.m. The Recorder found that by February 1999 he felt under great pressure and was finding it impossible to do all his work in the available time. Mr Green complained about this to Mr Farnsworth and believed that his complaints had been passed on to the editor, Mr Moore. He also complained to Mr Moore, whose response was to defer the deadlines for publication of Bygones which were not important. The Recorder found that these complaints were also met to some extent by removing work from the features department and drafting in other staff to help from time to time.
- Mrs Johnson worked closely with the claimant. One morning in May 1999 Mr Green, as she said, "threw a little bit of a wobbly" at someone in the office. She rang his wife to suggest that he see a doctor because she was concerned that his family and financial problems of which she was aware and his concern about the prospective changes at work were getting on top of him. He did not in fact see his doctor until 9th June and had not done so for a number of years for anything of relevance to his claim.
- Another employee, Mr Chapman, who gave Mr Green a lift to and from work every day and drank with him once a week, had not noticed anything wrong with his health. They had discussed work, but Mr Green had not complained that its stresses were making him ill.
- On 1 June Mr Green sent a long memo to Mr Moore headed "Re: Bygones". He complained of his inability to produce the magazine to a scheduled date due to lack of time and made various suggestions as to how the problem could be solved. He concluded by saying:
I am sorry to have to burden you with this problem again, but Bygones is a constant worry to me to the point where it is beginning to affect my health. As I have told you on more than one occasion in the past, I enjoy doing that particular job and would not seek to shunt it elsewhere, but one has to face reality. And the reality is there is too much work and not enough hours. I hope you will give my suggestions some thought and together we may go some way towards resolving an extremely difficult situation before it deteriorates to the point of no return.
- Mr Moore consulted the paper's senior employees about the memo. Their unanimous response was one of surprise at Mr Green's complaint that he was overworked. They said he worked less hours than anyone else, always took a half hour coffee break when he arrived in the office and very rarely if ever worked late.
- At about 9 a.m. on 8 June Mr Moore went to the features department in order to arrange a meeting with Mr Green to discuss his memo. The telephones were ringing, and neither Mr Green nor Mrs Johnson were about. When Mr Green returned to his desk Mr Moore asked whether it was fair for him to be taking a break as soon as he arrived at work. Mr Green said he was astonished to be asked this question and after a brief further exchange said he had had enough, picked up his bag and walked off. The next day he went to his doctor who diagnosed depression. Mr Green was off work until he retired on ill health grounds in February 2001.
- The evidence at trial was that Mr Green was a perfectionist. This made him a bit of a grumbler but his work was always of the highest quality. He was meticulous but slow. In 1989 Mr Moore had moved him from news to features because he had been unable to cope with frequent short deadlines. The psychiatrists agreed that he had an obsessional personality: he was concerned with detail rather than the big picture and found it difficult to cope with deadlines and adapt to change.
- The case advanced on behalf of Mr Green at trial was that there was enough in the events before 1 June 1999 to indicate impending harm to Mr Green's health due to stress at work so as to trigger the duty to take steps to do something about it. At the very least, it was argued that the memo of 1 June triggered the duty and that the absence of a prompt and appropriate response to it amounted to breach. Mr Matthews on behalf of Mr Green submitted that the object of Mr Moore going to see Mr Green on 8 June was not to address concerns for his health but to confront him for taking a coffee break before work had even begun. This was calculated to have precisely the effect that it did, and was in breach of the duty of care owed to Mr Green.
- The Recorder rejected any suggestion that Mr Green was in fact being overworked. From the perspective of the defendants there was no diminution in the quality of Mr Green's work. There was no substantial increase in his hours to accommodate an ever burdensome workload. He did not take work home. Those close to him: Mr Chapman, Mrs Johnson and Mr Farnsworth said he had a full workload, but not over full.
- The Recorder found that:
The objective evidence from all the defendant's witnesses was that the claimant was under less stress than anyone else … He asked for help but seldom offered it. The general view was that he was looking forward to retirement more than most and other than some slight changes when he was not thought to be his normal self and these were put down to extraneous factors, there was no outward sign of the turmoil which was clearly going on within. No-one, even those close to him, saw any obvious signs of deterioration in his psychological well-being.
- Based on these findings the Recorder concluded:
It is difficult to see how an employer could tell at an early stage that his inability to cope was more than occupational stress. Hindsight enables one to view hitherto meaningless remarks, actions and behaviour in a completely different light.
- Dealing with the memo she said:
I do not think that the claimant was expecting the promptest of responses. There was no mention [of this] in his evidence. In cross examination he was asked whether it was reasonable for the editor to investigate with others before discussing it direct and his answer was "probably". The suggestions he was proposing were long-term, not "in a day fixes". We do not know how long it took the editor to consult, but that seemed a reasonable response from him: the memo did call for an informed and studied response.
- Finally the Recorder said:
In all the circumstances I am not satisfied that the defendants did nor could they be reasonably expected to foresee the real risk of the major break-down suffered by the claimant and therefore the claim is dismissed.
She made no findings on causation or loss.
- Mr Matthews, on behalf of Mr Green, submits that this last paragraph of the judgment shows that the Recorder applied the wrong test. By referring to a "real risk of major break-down" she set the threshold test of foreseeability too high. The Recorder should have applied the more general test favoured by Lord Walker in Barber. Had she done so she might have reached a different conclusion.
- We do not accept these submissions. We have already said that we do not think that anything which was said in Barber was intended to alter the practical guidance given in Hatton. The Recorder quoted the relevant parts of the Hatton guidance in her judgment and there is nothing to indicate that she did not apply it properly. Mr Green's breakdown was described in the medical evidence as serious. The Recorder's summary of her conclusion which we have quoted could have been expressed at greater length, but she was doing no more than summarising her conclusion as to the foreseeability of the kind of injury to health which Mr Green suffered.
- Mr Matthews' principal complaint is that the Recorder could not properly have reached the conclusion she did because by his memo of 1 June Mr Green had told Mr Moore that his worries about Bygones were beginning to affect his health. No issue of foresight therefore arose. The duty to take steps was triggered and so the only question was whether the steps taken by the employer in response to the memo were reasonable. Mr Matthews submits that whilst the Recorder dealt with an aspect of Mr Moore's response she did not do so compendiously. She should have considered whether confronting Mr Green in front of his colleagues was an appropriate response. There was medical evidence to the effect that this aggravated his illness and that a positive and sympathetic response would have been beneficial. The Recorder did not deal with this and so, if she concluded that there had been no breach of duty her conclusion cannot stand.
- The stage by stage approach set out in Hatton to the issues of duty, breach and causation gives invaluable guidance to the path which judges should follow in this type of case. But the boundaries between these issues will often not be well defined. The Recorder appears to have accepted that Mr Green's passing reference to problems with Bygones starting to affect his health called for some action. The question was whether Mr Moore's response was adequate. Here the context in which the complaint was made is highly relevant.
- The Recorder concluded that the response to the memo was reasonable. We think that this conclusion was entirely justified. Mr Green's suggested solutions to the Bygones problem raised a number of issues about reorganising the work of other departments and recruiting more staff, which obviously required consideration. Mr Moore's evidence was that the consultation with his colleagues included questions about Mr Green's health. He was to give his informed response to the memo and discuss Mr Green's concerns about his health at the meeting which he went to set up no more than five working days after receiving the memo. As the Recorder says, Mr Green accepted that it was probably reasonable for Mr Moore to respond in this way. The planned meeting never took place because Mr Green walked out. The first suggestion that Mr Moore had gone to the department in order to confront Mr Green came from Mr Matthews when he opened the case at trial. It seems to us that this was the only argument that Mr Matthews was able to devise to meet the need to demonstrate foreseeability, breach of duty and causation. The Recorder was unimpressed and so are we. The suggestion that Mr Green's memo should have put Mr Moore on notice that Mr Green was on a knife-edge from which he could be tipped by an unkind comment about his coffee break is unrealistic. Nor did the evidence suggest that Mr Moore's comment had in fact tipped Mr Green over the edge. This case came nowhere near meeting the requirements identified in Hatton.
- For these reasons we have no doubt that the Recorder reached the right decision in this case. Mr Green's appeal is dismissed.
Moore v Welwyn Components Ltd.
- Mr Moore was employed as an accountant for 25 years by the defendant manufacturer of electrical components. By December 1997 he was suffering from a depressive illness which led to him having to retire in August 1998 at the age of 55. Judge Crawford Q.C. sitting as a High Court Judge in Newcastle found his employer liable for the illness and its financial consequences. The employer was refused permission to appeal the judge's finding of liability, but was granted permission to argue that he should have apportioned or reduced the damages he awarded to reflect the fact that there were non-negligent causes of the illness and/or to take account of the fact that Mr Moore would have succumbed to stress related disorder in any event (see Hatton paragraphs 41 and 42, although this is a pre-Hatton case).
- The judge found that the illness which resulted in Mr Moore's retirement was caused by the fact that he had been subjected to sustained bullying from the end of 1995 to August 1998 by the employer's finance director, Mr Watson. The employer was liable in negligence for what Mr Watson did. The judge described his conduct as appalling. It would have exposed any employee of reasonable fortitude to the risk of psychiatric illness.
- But Mr Moore was not such an employee. In 1975 he had suffered a severe depressive illness necessitating in-patient treatment in a psychiatric hospital and several months absence from work. In 1988 Mr Moore was absent from work with a further episode of depressive illness following the introduction of new computers at work. In 1990 he was absent from work with depression following a reorganisation of working practices. In 1994 he was absent from work for two weeks due to recurrent depressive illness for which he could not identify any specific trigger. However, Mr Moore did not suffer any loss of earnings as a result of his absences from work because he received sick pay.
- The agreed psychiatric evidence was that Mr Moore was a vulnerable individual who was biologically predisposed to suffering from depressive illnesses. He had suffered from periods of significant depressive illnesses in the past triggered by stresses at work and in his domestic life. It was also agreed that the depressive illness which had led to Mr Moore's retirement was "likely to have had more than one causative factor". One factor "would be Mr Moore's constitutional predisposition to depression but it was unlikely that this alone would have brought about an illness without some external stress".
- The judge, as we have said, found that Mr Watson's conduct caused the illness which led to Mr Moore's retirement. He also found that the earlier bullying in 1996 and 1997 had sensitised Mr Moore so as to make him more likely to succumb to this illness. At the end of 1997 Mr Watson had been made aware of the effect which his conduct was having on Mr Moore. The judge accepted the evidence of one of the psychiatrists that if Mr Watson had stopped bullying Mr Moore at that time he would have recovered completely and been able to continue working.
- Nevertheless the judge had been invited to apportion damages on the basis that the illness was also attributable to non-negligent stressors. These were identified as a belief that he was doing the job of two men and that he would be made redundant. There was none from his domestic life
- The judge simply said that in his view this was not a suitable case for apportionment. He gave no reasons for this conclusion. However when assessing general damages for pain suffering and loss of amenity he did take account of the fact that Mr Moore was a vulnerable personality. No challenge is now made to this part of the award. On the other hand the judge's award for past and future loss of earnings (nearly £150,000) took no account of this factor. It was made on the basis that but for Mr Watson's conduct Mr Moore would have worked until normal retirement in 2006.
- We refer to proposition (15) of Lady Justice Hale in Hatton (see paragraph 5 above). Where general damages fall to be assessed for breach of duty causing psychiatric injury, they will be reduced to reflect the fact that causes other than the breach of duty would, or might, in any event have caused a degree of injury. That factor was reflected in the general damages awarded to Mr Moore.
- The same principle applies to a claim for loss of earnings. If there was a reasonable prospect that Mr Moore's vulnerable mental state might, as a result of non-negligent stresses, have caused Mr Moore to lose earnings in the remaining years of his employment, an appropriate reduction should have been made in the £150,000 awarded for loss of earnings. Mr Hunter QC argued that this was indeed the case. We do not agree.
- Once it was shown that the bullying was the cause of the loss of earnings it was for the employer to show that there were other potential causes as well. That could have been established by clear medical evidence, but in this case it was not. The agreed medical evidence was equivocal. The oral evidence was not primarily directed to issues of apportionment or assessment, but to the main issue at trial, which was whether or not Mr Moore had been bullied. Moreover the only non-negligent stressors identified related to Mr Moore's work and were closely connected with the allegations of bullying which had also sensitised Mr Moore to their effect. For these reasons we think the judge was entirely justified in saying that this was not a case for apportionment.
- Mr Moore's psychiatric history shows that he had always recovered from his illnesses and been able to return to work. He had withstood the sustained bullying for 2½ years before it pushed him to the point where he had to retire. None of his previous illnesses had such an effect or had resulted in any loss of earnings. Mr Moore's entitlement to sick pay would have shielded him from loss of earnings unless sickness caused him to be off work for a period in excess of 6 months. The evidence failed to establish that, but for the bullying, there would have been any likelihood of this. The judge was therefore right to award Mr Moore the full amount of his loss.
- For these reasons the employer's appeal is dismissed.
Melville v The Home Office.
- Mr Melville was employed by the Home Office as a health care officer at H.M.P. Exeter. His duties included recovery of the bodies of prisoners who had committed suicide. His case was that since he started work in 1981 he had attended 8 such suicides, the last of which was on 4 May 1998. On this occasion he had helped to cut down the body, remove a ligature and attempt revival. In the days which followed he suffered from nightmares and flashbacks and developed what was subsequently diagnosed as a stress related illness. He last worked on 25 May 1998 and retired on the grounds of ill health early the following year at the age of 49.
- Mr Melville's claim was due to be heard in the Exeter County Court by His Honour Judge Overend, but the judge did not have time to try all the issues so with the agreement of the parties he tried the issue of foreseeability as a preliminary issue on the evidence contained in Mr Melville's witness statement and a number of Home Office documents. This is not a course we would encourage in cases of this kind, but we understand why it was taken here.
- Judge Overend decided the issue in favour of Mr Melville. Jack J dismissed the Home Office's appeal to the High Court. By its appeal to this court the Home Office contends that both judges were wrong.
- It was common ground that before he stopped work Mr Melville gave no indication that he was developing a stress related illness. The Home Office documents on the other hand showed that it recognised that persons who were called on to deal with certain traumatic incidents in prisons, such as suicides, might sustain injury to their health and that those persons should therefore receive support from the prison care team following such an incident. Jack J refers to a number of these documents in his judgment. We need only refer to the first of them, Circular Instruction 52/1990 titled "Deaths in Custody: Follow-up Action". It said:
20. A suicide is a traumatic event for any establishment and may seriously affect those staff closely involved: particularly the officers who discovered the body and those who had responsibilities for care and supervision of the inmate. It is important that staff are given the opportunity to express their feelings and that any necessary helpful support is made available. If the emotional effects are not recognised and dealt with, there may be serious consequences for the health and morale of the member of staff concerned …. Governors should therefore ensure that staff care and support arrangements are available and can be activated promptly after a death occurs.
Prison care teams were set up to provide the first line of post-incident care, support, guidance and advice following such an incident. The care team was required to contact every member of staff involved in an incident and offer initial care and support. It was however up to the individual whether to accept such an offer.
- On behalf of Mr Melville it was agreed that the Home Office had devised adequate procedures for dealing with the risk of injury to health which it foresaw. His case was that the implementation of those procedures at H.M.P. Exeter was lamentable. He knew there was a care team but did not know what it did and it had not made any attempt to contact him before 25 May 1998. These issues of breach and the issue of causation have still to be tried.
- Both judges asked themselves the simple question "Was it reasonably foreseeable that the claimant might suffer psychiatric damage?" and answered it in the affirmative. It had been submitted on behalf of the Home Office that establishing foresight of a risk of psychiatric harm to all employees exposed to particular traumatic incidents was not enough. Hatton decided that it was necessary for the individual employee to establish that his employer foresaw the risk of harm to him and in this case Mr Melville could not do so. Jack J. did not accept this submission. He said that great care had to be taken in applying the practical guidance given in Hatton to different situations. Mr Melville's case did not involve stress caused by day to day work, as in the four cases considered by this court in Hatton, but stress caused by a traumatic episode or episodes. He concluded:
"Here the Home Office knew that Mr Melville had been subjected to experiences outside the day to day experience of his job so that "if the emotional effects [were] not recognised and dealt with, there [might] be serious consequences for [his] health and morale" (Circular 52/1990).
- On behalf of the Home Office Mrs Outhwaite submitted that in every case of psychiatric injury it was necessary to look at the particular characteristics of the employee concerned and ask whether the injury to him was foreseeable. Unless the employer knew of some particular problem or vulnerability he was entitled to assume that the employee was up to the normal pressures of the job. In support of these submissions she relied on Hatton (paragraphs 23 and 29) and the application of those principles in subsequent cases. Mrs Outhwaite submitted that by deciding that psychiatric harm was foreseeable if it could be predicted as a general risk to a group of employees, the judges circumvented the guidance given in Hatton and attached too little weight to the fact that it is the employee who knew best whether he was suffering occupational stress and impending injury to his health. There were good public policy reasons for setting the level of the threshold for liability in accordance with this guidance (see Hatton paragraphs 13 and 14). The practical consequence of setting it lower would be to discourage employers from adopting desirable precautionary measures such as counselling services, lest by doing so they should be found to have conceded foreseeability.
- We do not accept these submissions. As is apparent from the way in which the judgment in Hatton is expressed and as Lord Walker pointed out in Barber the guidance must be read as such and not as anything like a statute. Each case will depend on its own facts. Those parts of the Hatton judgment relied on by Mrs Outhwaite were primarily intended to help judges resolve the issue as to whether an employer ought to have foreseen the risk of psychiatric injury attributable to stress at work. The guidance recognises that such injury is more difficult to foresee than physical injury. The question of whether the particular employee has shown indications of impending harm to health is a very relevant question when considering a situation where the employer has not in fact foreseen the risk of psychiatric injury and the employee's workload would not ordinarily carry a foreseeable risk of such injury.
- But that is not this case. Here, on the only evidence before the court, the employer plainly did foresee that employees who were exposed to particular traumatic incidents might suffer psychiatric injury. There was only one answer to the simple question which the judges asked themselves. Mrs Outhwaite's submissions amounted to saying that what was in fact foreseen was not foreseeable. It is illogical to argue that when an employer has foreseen a risk of psychiatric injury to employees exposed to certain traumatic incidents, such injury is not foreseeable if the employee does not show impending signs of such injury before the event takes places.
- As Mr Cooksley QC for Mr Melville submitted, this case is similar to a case where an employer foresees the risk of physical injury. He gave the example of an employer who foresees the risk of noise-induced hearing loss in part of his factory and so designates it as an area in which hearing protection must be worn. Can it seriously be argued that physical injury was not foreseeable to anyone in this area who was not wearing the protection? And if so, why should there be any difference where the risk foreseen is psychiatric injury when it is accepted that there are no special control mechanisms applying to claims for such injury and that the ordinary principles of employers' liability apply?
- We do not think the judge circumvented the Hatton guidance. At paragraph 29, after referring to the passage relied on by Mrs Outhwaite about the employer being entitled to assume that the employee is up to the normal pressures of the job, the court said:
It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder.
Here there was something specific about the job – the occurrence of certain traumatic incidents – which did cause the employer to think harder and devise a perfectly adequate system for dealing with the risk which was foreseen. If the Home Office failed to implement its own system it only has itself to blame. It set its own threshold.
- We would end with a word of caution. The mere fact that an employer offers an occupational health service should not lead to the conclusion that the employer has foreseen risk of psychiatric injury due to stress at work to any individual or class of employee. And of course the availability of such a service will mean that the employer is unlikely to be found in breach even if harm is foreseeable (Hatton paragraphs 17 and 33). Moreover in a case where a conscientious employer has assessed that there is some potential risk of psychiatric injury, it will still be open to him to argue that it was a mere possibility or so small that it was reasonable for him to neglect it (see The Wagon Mound No. 2 [1967] AC 617 at 642/3). Nor does it follow that if one employer has foreseen a particular risk, all others in the same field should have done so as well. If there is an issue as to whether a particular employer should have done so, it would fall to be decided in accordance with Swanwick J's statement of general principle in Stokes v Guest Keen & Nettlefold (Bolts & Nuts) Ltd.
- But for the reasons we have given the Home Office's appeal in this case is dismissed.
