Hartman v South Essex Mental Health and Community Care NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 19 January 2005 |
| Neutral Citation | [2005] EWCA Civ 6 |
| Docket Number | Case No: B3/2002/1594; B3/2003/2144; B3/2003/2690; B3/2004/0695; B3/2001/2474; B3/2002/2770 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2005 |
[2005] EWCA Civ 6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM:
(1) The Southend County Court (Judge Dedman)
(2) The Telford County Court (Mr Recorder Evans)
(3) The Chesterfield County Court (Judge Waine)
(4) The Great Grimsby County Court (Mrs Recorder Stocken)
(5) The High Court of Justice, Queen's Bench Division (Judge Crawford QC sitting as a High Court Judge)
(6) The High Court of Justice, Queen's Bench Division (Mr Justice Jack)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Phillips of Worth Matravers Mr
Lord Justice Tuckey and
Lord Justice Scott Baker
Case No: B3/2002/1594; B3/2003/2144; B3/2003/2690; B3/2004/0695; B3/2001/2474; B3/2002/2770
Mr Andrew Hogarth QC (Instructed by Messrs Barlow, Lyde & Gilbert) for the Appellant
Mr Andrew Glennie (Instructed by Messrs Newman and Maxwell) for the Respondent
Mr David Platt & Mr M Boyle (Instructed by Messrs Berrymans Lace Mawer) for the Appellant
Mrs Kathleen anderson & Mr S Wright (Instructed by Messrs Gowmans) for the Respondent
Mr Robert Stokell (Instructed by Messrs Halliwell Landau) for the Appellant
Mr Richard Seabrook Instructed by Messrs Thompsons) for the Respondent
Mr Jullian Matthews (Instructed by Messrs Paul Rudd) for the Appellant
Mr Richard Swain (Instructed by Messrs Dla) for the Respondent
Mr Winston Hunter QC & Simon Burrows (Instructed by Messrs Halliwell Landau) for the Appellant
Mr Simon Dyer (Instructed by Messrs John O'neal & Co.) for the Respondent
Ms Wendy Outhwaite (Instructed by Treasury Solicitors) for the Appellant
Mr Nigel Cooksley QC (Instructed by Augustines Injury Law) for the Respondent
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] 1CR 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)...
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