Bonser v UK Coal Mining Ltd (formerly RJB Mining (UK) Ltd)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE SIMON BROWN,Lord Justice Simon Brown |
| Judgment Date | 09 June 2003 |
| Neutral Citation | [2003] EWCA Civ 1296 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 2003 |
| Docket Number | B3/2003/0293 |
[2003] EWCA Civ 1296
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(SHEFFIELD DISTRICT REGISTRY)
(HIS HONOUR JUDGE MOORE)
QUEEN'S BENCH DIVISION
The Law Courts
Quayside
Newcastle upon Tyne, NE1 3LA
The Master of the Rolls
(Lord Phillips of Worth Matravers)
Lord Justice Simon Brown
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Ward
B3/2003/0293
MISS CATHERINE FOSTER (instructed by Messrs Halliwell Landau, Sheffield, S1 2GU) appeared on behalf of the Appellant
MR GRAHAM ROBINSON (instructed by Messrs Frank Allen Pennington, Doncaster, DN1 2EE) Appeared on behalf of the Respondent
LORD PHILLIPS, MR: L ord Justice Ward will give the first judgment.
This is a sad case. On 23 December 2002 Mrs Christine Bonser succeeded before His Honour Judge Moore in the Sheffield County Court in establishing her claim for damages against her former employers, RJB Mining (UK) Limited. She recovered the sum of £38,056.10. Those damages were awarded to her for the psychiatric injury, colloquially called "stress", which she suffered in the course of that employment.
The law on this subject has recently received clarification from the Court of Appeal in a series of cases, the lead case being Hatton v Sutherland [2002] 2 All ER 1. That case was at the forefront of the judge's mind. He read extensively from the headnote and parts of the relevant passages in the judgment, but it bears some repetition.
In that case the Court of Appeal made it plain that this particular cause of action, being a cause of action for damages for psychiatric injury, stands in a different position from other cases where physical injury is sustained. The crucial question is inevitably foreseeability. The Court of Appeal expressed in paragraph 25 of that judgment the single test:
"Whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components: (1) an injury to health; which (2) is attributable to stress at work."
A number of factors will help to determine what the reasonable employer should have foreseen. One, which is important for the respondent, Mrs Bonser, is given in paragraph 26 of that judgment:
"It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable."
But, as the court pointed out, important though that may be, more important are the signs from the employee. The court warned how necessary it was to distinguish between:
"… signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health."
In paragraph 29 it was observed:
"Unless he [the employer] 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."
When dealing with breach of duty, the court observed that, in many cases, the fact that the employer has a counselling service may be conclusive. Paragraph 33 of the judgment stated:
"As we have already said, an employer who tries to balance all those interests by offering confidential help to employees who fear that they may be suffering harmful levels of stress is unlikely to be found in breach of duty: except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear."
The key passage in the judgment for the purposes of this case is that summarised in proposition 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."
There was a reference to paragraph 31 where the Court of Appeal emphasised this point:
"But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it."
In this case there has been no sustained challenge to any of the principles thus established by the court and the judge was fully and properly directed to them. He accordingly approached the case in this way. He had before him a married woman who is now 50 years old. She commenced this employment in January 1995. It terminated as a result of the breakdown she suffered in her health in May 1998. She was a conscientious, hardworking and skilled person. She had worked well for some 20 years in her previous employment in the British Coal Industry but was made redundant. When the appellant mining company took over some of the licences and leases of the old British Coal Authority, there was extra work and they engaged Mrs Bonser. They took up references which revealed, as the judge recorded in paragraph 11, that:
"Christine would not be particularly good in a highly stressful environment but she is good at dealing with IT users, training and communication."
Based on that favourable reference as to her skills, she was officially appointed as the Technical Support and Training Manager. That involved her in having to deal with the technical problems of the computer system operated by the appellants, and a second area of setting up and training new employees. In time a third area of responsibility was given to her (uniquely in the department) for the installation of new computer systems, the project element of the job.
The respondent is, and was, a very hard working lady. She regularly worked beyond the contractual hours which she was required to fulfil. She thought about her job in such idle moments as she had at home. It was said of her that she was conscientious to a fault.
Sadly, we now know that Mrs Bonser is saddled with some emotional vulnerability. In 1989 in her previous employment, she suffered from depression which led to her being off work for five months because of a perceived deception practised upon her in a property purchase by a fellow employee. She also suffered from severe pre-menstrual stress which required significant hormone replacement therapy. Her husband was emotionally vulnerable and had had to give up his work. That was an added pressure upon her.
So far as her claim is concerned, it was her case, put by Mr Robinson, who appeared before the judge and who has appeared before us, that, looking at the chronology, attention should be focused on the period beginning in mid-1996. It was suggested that she was subjected to an ever increasing workload by an overbearing superior, Mr Martin Altounyan, who ignored the increasing stress levels to which she was subjected. Eventually, by the spring of 1997, she had suffered a definable injury to her health which led to her having to give up work in April. That eventually to her dismissal.
It appears, upon examination of the way the case has been argued, that the main thrust of her complaint was that, by the time she suffered that breakdown in February 1997, there was still time for remedial steps to be taken by her employer to avert the full disaster which subsequently afflicted her. That case foundered because the judge accepted the finding of the defendant's psychiatrist, who was one of the experts called to assist him. He found in the conclusion of his judgment in paragraph 61 as follows:
"Two things are now clear to me, and I so find. The reasonable man in McFee's [the managing director's] position would probably have done what Mcfee did. Even if he had reacted differently, it is clear from Dr Holden's evidence, which I accept, that by December 1996 intervention would have achieved almost nothing. Into 1997, on Dr Holden's evidence, which I accept, the dye was cast, although it was not until February that the open manifestation of her condition made it abundantly clear to the whole world that she was suffering anxiety and stress."
Putting that in its context, the judge found that by the time her illness was manifest, it was too late to take any steps to remedy her difficulty. Nevertheless, he found in her favour. In summary, he found that the origin of her difficulties could be traced back to August 1996 when there was time for the pressure to be eased, the result of which would have delayed the onset of her illness by a year. He awarded her the general and special damages for that acceleration of one year.
I must now analyse how the judge arrived at that conclusion. Trouble at work had begun in the summer of 1996. It led to a meeting which was held, principally, by her immediate superior, Mr Barton, and his superior, Mr Altounyan. The minute of that meeting recorded the concern registered by Mr Altounyan that:
"agreed assignments and time scales were not being met nor fed back."
The judge placed some emphasis upon that. The minute then recorded that:
"It was agreed by Mr Altounyan that all requests for project work, meetings etc would be channelled through Mr Barton. This would ensure that the support resource was properly controlled and allocated."
The minute concluded by Mr Altounyan stressing the importance of team work and the achievement of agreed deadlines. He suggested that:
"In the future individuals' performance will be primarily judged by these objectives."
The judge seems to have placed upon that minute the emphasis...
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