Barber v Somerset County Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale |
| Judgment Date | 05 February 2002 |
| Neutral Citation | [2002] EWCA Civ 76 |
| Docket Number | Case Nos: B3/2000/3074; B3/2001/0171 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2002 |
[2002] EWCA Civ 76
Lord Justice Brooke
Lady Justice Hale and
Lord Justice Kay
Case Nos: B3/2000/3074; B3/2001/0171
B3/2000/3472; B3/2001/0334;
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Trigger
Royal Courts of Justice
Strand,
London, WC2A 2LL
Andrew Collender QC and Stephen Archer (instructed by Rollingsons for the Defendant/Appellants)
Peter Atherton (instructed by Silverbeck Rymer for the Claimant/Respondent)
| B3/2001/0717 Exeter County Court HH Judge Roach B3/2000/3472 Birmingham County Court HH Judge Nicholl B3/2001/0334 Leeds County Court HH Judge Kent-Jones | SOMERSET COUNTY COUNCIL And LEON A LAN BARBER SANDWELL METROPOLITAN BOROUGH COUNCIL And OLWEN JONES BAKER REFRACTORIES LTD And MELVYN EDWARD BISHOP |
|
(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)
B3/2001/0717
Robert P Glancy QC & Christopher Goddard (instructed by Graham Clayton for the Claimant/Respondent)
Andrew Hogarth (instructed by Veitch Penny for the Defendant/Appellant)
B3/2000/3472
Ralph Lewis QC (instructed by Simpson & Co for the Defendant/Appellants)
Mark Anderson (instructed by Martineau Johnson for the Claimant/Respondent)
B3/2001/0334
Robert F Owen QC (instructed by Whitfield Hallam Goodall for the Defendant/Appellants)
Howard Elgot (instructed by Morrish & Co for the Claimant/Respondent)
SUMMARY
(This summary forms no part of the judgment)
These four appeals, from different county courts, were all heard together. In each case a circuit judge awarded damages for negligence against the claimants' employers after the claimant had had to stop working for them owing to stress-induced psychiatric illness. Two of the claimants were teachers in comprehensive schools, the third was an administrative assistant at a local authority training centre, and the fourth was a raw materials operative at a factory.
The Court of Appeal allowed the employers' appeals in three of these cases (Hatton, Barber and Bishop). In the fourth (Jones) it dismissed the employers' appeal "not without some hesitation". The main judgment contains an analysis of the nature of the legal duty imposed on employers in cases of this kind (paras 19–22), the circumstances in which a court may find that it was reasonably foreseeable to an employer that his employee might suffer psychiatric illness through stress at work (paras 23–31), and the circumstances in which a court may find an employer in breach of his duty (paras 32–34). This part of the judgment also contains the court's general observations on causation (para 35) and apportionment and quantification (paras 36–42).
In paragraph 43 of the judgment the Court of Appeal sets out 15 practical propositions for the guidance of courts concerned with this type of claim in future.
The court then applies these principles of law briefly to the four appeals (paras 44–73). A much fuller factual analysis of the four cases is contained in the Appendix.
INDEX
| Part | Para No |
| 1 Introduction | 1 |
| 2 Background considerations |
|
| Psychiatric ill-health | 3 |
| Occupational stress | 7 |
| Differences from other work-related harm | 11 |
| 3 The Law |
|
| Duty | 19 |
| Foreseeability | 23 |
| Breach of duty | 32 |
| Causation | 35 |
| Apportionment and quantification | 36 |
| 4 Summary | 43 |
| 5 Mrs Hatton | 44 |
| 6 Mr Barber | 51 |
| 7 Mrs Jones | 60 |
| 8 Mr Bishop | 68 |
| 9 Conclusion | 74 |
| APPENDIX |
|
| A Mrs Hatton |
|
| 1. Introduction | 75 |
| 2. History prior to 1992 |
|
| (i) The judge's findings | 78 |
| (ii) Other matters not recorded by the judge | 79 |
| 3. September 1992 – July 1993 |
|
| (i) The judge's findings | 80 |
| (ii) Other matters not recorded by the judge | 82 |
| 4. September 1993 – July 1994 |
|
| (i) The judge's findings | 87 |
| (ii) Other matters not recorded by the judge | 89 |
| (iii) The expert evidence | 92 |
| 5. September 1994 – July 1995 |
|
| (i) The judge's findings | 96 |
| (ii) Other matters not recorded by he judge | 99 |
| 6. September 1995 – October 1995 |
|
| (i) The judge's findings | 100 |
| (ii) Other matters not recorded by the judge | 102 |
| 7. The employers obligations |
|
| (i) The judge's findings | 104 |
| (ii) Other matters not recorded by the judge | 110 |
| 8. The respondent's notice | 128 |
| 9. Our conclusion on liability | 130 |
| 10. Damages | 132 |
| B Mr Barber |
|
| 1. Introduction | 139 |
| 2. The judge's findings | 140 |
| 3. The respondent's notice | 151 |
| 4. Other background evidence | 152 |
| 5. The evidence about Mr Barber's health | 157 |
| 6. Liability: our conclusions | 164 |
| 7. Damages | 166 |
| C Mrs Jones | 175 |
| 1. Facts | 176 |
| 2. The judge's findings | 194 |
| 3. The arguments on appeal | 200 |
| 4. Conclusion | 210 |
| D Mr Bishop | 211 |
Introduction
These four appeals are related only by their subject matter. In each a defendant employer appeals against a finding of liability for an employee's psychiatric illness caused by stress at work. Two of the respondent claimants were teachers in public sector comprehensive schools; another was an administrative assistant at a local authority training centre; the fourth was a raw materials operative in a factory. There is broad agreement as to the applicable principles of law. But there are difficulties in applying the principles developed in the context of industrial accidents to these very different circumstances. Hearing four very different cases together has also cast valuable light upon how those difficulties might be resolved in individual cases.
This judgment of the court, to which we have all contributed, is arranged as follows. First we consider some relevant background considerations; then the legal principles and how these are to be applied in this class of case; and we conclude with a summary of the questions to be asked in determining individual cases. Then we summarise the facts and our conclusions in each of the four cases under appeal. The details of each of these cases are contained in the Appendix, which also contains an analysis of issues relating to damages which arose in two of the appeals.
Background considerations
This type of case has been described as the 'next growth area' in claims for psychiatric illness: see NJ Mullany, "Fear for the Future: Liability for Infliction of Psychiatric Disorder" in NJ Mullany (ed), Torts in the Nineties (1997), p 107. This growth is due to developing understanding in two distinct but inter-related areas of knowledge.
Psychiatric ill-health
The first is of psychiatric illness generally. The Law Commission, in their Consultation Paper on ( Liability for Psychiatric Illness LCCP No 137, 1995), commented at para 1.9:
"We are aware from our preliminary consultations that there are strongly held views on this topic. On the one hand, there are those who are sceptical about the award of damages for psychiatric illness. They argue that such illness can easily be faked; that, in any event, those who are suffering should be able to 'pull themselves together'; and that, even if they cannot do so, there is no good reason why defendants and, through them, those who pay insurance premiums should pay for their inability to do so…. On the other hand, medical and legal experts working in the field, who are the people who most commonly encounter those complaining of psychiatric illness, have impressed upon us how life-shattering psychiatric illness can be and how, in many instances, it can be more debilitating than physical injuries."
The latter we entirely accept. But although there have been great advances in understanding of the nature and causes of psychiatric ill-health, there are still important differences between physical and mental disorders.
(1) The dividing line between a normal but unpleasant state of mind or emotion and a recognised psychiatric illness or disorder is not easy to draw. Psychiatric textbooks tell us that with a physical disease or disability, the doctor can presuppose a perfect or 'normal' state of bodily health and then point to the ways in which his patient's condition falls short of this. There is probably no such thing as a state of perfect mental health. The doctor has instead to presuppose some average standard of functioning and then assess whether his patient's condition falls far enough short of that to be considered a disorder. However, there is now a considerable degree of international agreement on the classification of mental disorders and their diagnostic criteria, the two most commonly used tools being the most recent American Diagnostic and Statistical Manual of Mental Disorder, the DSM-IV (1994) and the World Health Organisation's ICD-10 Classification of Mental and Behavioural Disorders (1992).
(2) While some of the major mental illnesses have a known or strongly suspected organic origin, this is not the case with many of the most common disorders. Their causes will often be complex and depend upon the interaction between the patient's personality and a number of factors in the patient's life. It is not easy to predict who will fall victim, how, why or when.
(3) For the same reason, treatment is often not straightforward or its outcome predictable: while some conditions...
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