Hatton v Sutherland; Barber v Somerset County Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE |
| Judgment Date | 01 April 2004 |
| Neutral Citation | [2004] UKHL 13 |
| Date | 01 April 2004 |
| Court | House of Lords |
[2004] UKHL 13
HOUSE OF LORDS
Session 2001-02
Publications on the Internet
Judgments
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I am in full agreement with it, and for these reasons would allow the appeal and make the order which he proposes.
My Lords,
I have had the privilege of reading the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it. I too would make the order which he proposes.
My Lords,
The issue in this case is whether the Somerset County Council, who employed Mr Barber as a teacher at their East Bridgwater Community School, are liable to him in damages for the mental breakdown he suffered brought about by the pressures and stresses of his workload. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Walker of Gestingthorpe and gratefully adopt his exposition of the relevant facts and the history of this litigation.
As Lord Walker has explained the Court of Appeal heard four conjoined appeals of which Mr Barber's case was one. In each case a defendant employer appealed against a finding of liability for an employee's psychiatric illness caused by stress at work. Two of the employees were teachers in public sector comprehensive schools — Mr Barber was one of them. Another of the employees was an administrative assistant at a local authority training centre. The fourth was a raw materials operative in a factory. The Court of Appeal heard the four cases together in order to try and provide guidance as to the principles that should be applied to cases where an employee's complaint about the system of work provided by his employer and under which he had had to work was not that the system had subjected him to some degree of unnecessary and unreasonable physical danger but that it had subjected him to a degree of mental stress carrying the risk of psychiatric illness.
The judgment of the Court of Appeal was given by Hale LJ. In my respectful opinion her judgment succeeded in succinctly and accurately expressing the principles that ought to be applied. Lord Walker has cited paragraph 29 of her judgment but has preferred, as a statement of general principle, the statement of Swanwick J in Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776. My Lords, my own preference is the other way round. Swanwick J did not have in mind the problems of psychiatric illness caused by stress. In Stokes the employee had been exposed at work over a long period to mineral oil which, on a daily basis, had saturated his clothing and come into contact with his skin. As a result of this he developed cancer of the scrotum from which he eventually died. The question was whether there were steps or precautions that the employers ought to have taken to protect Mr Stokes from the risk of contracting the disease (see pages 1782/3). The question, in short, was whether his employers were providing for him a reasonably safe system of work.
An appreciation of the existence of physical dangers of the sort that Mr Stokes, unbeknownst to himself, was facing is dependent on scientific and medical knowledge. The factory doctor at the factory where Mr Stokes worked had known of the risk of scrotal cancer, had failed to draw the workforce's attention to the risk and had failed to institute periodic medical examinations of workers exposed to the risk. Swanwick J held that those failures constituted negligence. The contrast with psychiatric illnesses caused by stress is obvious. Take Mr Barber's case. The school authorities could only know what Mr Barber told them. This was the point Hale LJ was making in the passages in italics in her paragraphs 29 and 30:
"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",
"Generally he is entitled to take what he is told by or on behalf of the employee at face value" and
… an employee who returns to work after a period of sickness without making further disclosure or explanation to his employer is usually implying that he believes himself fit to return to the work which he was doing before."
Mr Langstaff QC, counsel for Mr Barber, protested that this approach was placing the onus on the employee to alert the employer. He is quite right. 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. 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.
In paragraph 43 of her judgment Hale LJ formulated a number of "practical propositions" applicable to cases where complaint is made of psychiatric illness brought about by stress at work. All are valuable but some are particularly pertinent to this case�
(2) The threshold question is whether [psychiatric] 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) Foreseeability depends upon what the employer knows (or ought reasonably 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? … Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? …
(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 inquiries 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.
(9) The size and 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
(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.
…"
Hale LJ applied these propositions to the primary facts of the Barber case, as found by the trial judge, and expressed her disagreement with the trial judge's conclusions. She did so in paragraphs 57 to 59 of her judgment (cited at paragraph 66 of Lord Walker's opinion). The trial judge, of course, did not have the advantage of Hale LJ's paragraph 43 guidance. If he had, I do not think he would have said, as he did in paragraph 42 of his judgment, that the "crucial question" was
… whether the pressures to which [Mr Barber] was exposed put him at a materially higher risk of mental illness than that which would affect a teacher working with [Mr Barber's] responsibilities under a heavy workload."
He would have appreciated that the crucial questions were, first, whether Mr Barber's breakdown in November 1996, caused, as the judge held, by his heavy workload and responsibilities, was reasonably foreseeable by the school authorities (see Hale LJ's propositions (2), (3), (5), (6) and (7) in her paragraph 43); and, second, whether there were steps that the school authorities could, and should, have taken to prevent the breakdown (see Hale LJ's propositions (9), (12) and (13)).
It may be that if the judge had had the advantage of the guidance provided by Hale LJ he would still have concluded that Mr Barber's breakdown was indeed reasonably foreseeable and that there were steps that the school authorities could, and should, have taken that would have prevented the breakdown. A fair reading of his judgment suggests the probability that he would have come to these conclusions. The Council would have appealed. Would it have been open to the Court of Appeal to disagree with the trial judge's conclusions?
It is at this point that, to my regret, I find myself in disagreement with a majority of your Lordships. Your Lordships are all agreed in approving the statements of legal...
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