Johnstone v Bloomsbury Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE LEGGATT,THE VICE-CHANCELLOR |
| Judgment Date | 19 December 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1219-3 |
| Docket Number | 90/1062 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 1990 |
[1990] EWCA Civ J1219-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR H.W. BURNETT Q.C. SITTING AS A DEPUTY HIGH COURT JUDGE IN CHAMBERS)
(MR J.P. GORMAN Q.C. SITTING AS A DEPUTY HIGH COURT JUDGE IN CHAMBERS)
Royal Courts of Justice
The Vice-Chancellor
(Sir Nicolas Browne-Wilkinson)
Lord Justice Stuart-Smith
Lord Justice Leggatt
90/1062
THE HON. MICHAEL BELOFF Q.C. and MR ANDREW HOCHHAUSER, instructed by Messrs Beachcroft Stanleys, appeared for Bloomsbury Health Authority.
MR STEPHEN SEDLEY Q.C. and MR ANTONY WHITE, instructed by Messrs Hempsons, appeared for Christopher Johnstone.
At the material time the plaintiff in this action was employed by the defendants, the Bloomsbury Health Authority ("the Authority") as a Senior House Officer in the Obstetric Department of University College Hospital in London. His contract of employment was contained in a letter dated 17th February 1988 from the Authority, which had the following term:
"4(b) Your hours of duty shall be the standard working week of 10 units of Medical Time (40 hours) and in addition you will be available for Class A UMTs (as defined in the Terms and Conditions of Service para 119), on average a week as follows:-
1.2.89 Obstetrics 12 UMTs."
The effect of this provision is that the plaintiff is required to work a basic 40 hours per week and the Authority are bound to provide and pay for 40 hours a week. In addition however the plaintiff is required to be available, on call, for up to a further 48 hours on average. This means that in some weeks he may have to work considerably more than 88 hours in total, though the average must not exceed this each week taken over a period. It is also worth noting that payment for any hours worked over 40 are somewhat unusually not paid at a higher rate than the basic pay, but at one-third of this rate.
By paragraph 4 of the statement of claim the plaintiff alleged that the Authority owed him a number of duties as his employer. But the only one relevant to this appeal is paragraph 4(a), which alleged that the Authority were under a duty to take all reasonable care for his safety and wellbeing. Although there has been some ambivalence in the plaintiff's pleadings as to the basis upon which this duty arises, namely, whether in tort or by implication of law into the contract of employment, the distinction is immaterial since it can be both. Matthews v. Kuwait Bechtel Corp. [1959] 2 Q.B. 57.
In paragraph 5 of the statement of claim it is alleged that in breach of the duty the Authority, from 1st February 1989 onwards, required the plaintiff to work intolerable hours with such deprivation of sleep as to damage his health and put at risk the safety of his patients. Particulars are then given by reference to a schedule. These allege that the plaintiff had been required to work very long hours, in some weeks exceeding 100, with inadequate periods of sleep; over one weekend he worked a 32-hour shift with only 30 minutes sleep. On another weekend he was on call for 49 continuous hours, during which period he was "bleeped" more than 60 times and was able to sleep only for a total of seven hours. It is then alleged in effect that the Authority knew or ought to have known, by reason of extensive published material, that working excessive hours and being deprived of sleep can cause stress, depression and anxiety in hospital doctors with consequent risk of mistakes or inefficient treatment of patients.
In paragraph 6 of the statement of claim the plaintiff alleges that as a result of being required to work such hours with inadequate sleep on 23rd June 1989 (sic) he suffered personal injury and continues to do so. He suffers from stress and depression; is lethargic and his appetite and ability to sleep are diminished. He has been physically sick on occasions from exhaustion and has felt desperate and suicidal.
The relief claimed in the prayer in the statement of claim, which substantially followed that in the writ, was as follows:
"(i)(a) A declaration that the Plaintiff cannot lawfully be required to work under his contract of employment for more than 72 hours per week or for a continuous period of more than 24 hours without a break of not less than 8 hours.
(ii) An Injunction to restrain the Defendant from requiring the Plaintiff to work in excess of 72 hours per week or for continuous periods of more than 24 hours without a break of not less than 8 hours.
(iii) Damages."
In the course of his submission in this court Mr Sedley Q.C. on behalf of the plaintiff sought and obtained leave to amend the prayer in the statement of claim and writ. This was because the plaintiff is no longer employed by the Authority and therefore an injunction is no longer appropriate. But more importantly because the figure of 72 is to some extent an arbitrary figure and the evidence may establish at trial that the plaintiff's safe working hours were more or less than this, but less than 88 on average.
Paragraph (i) of the prayer in the statement of claim as amended now reads:
"(i)(a) A declaration that the Plaintiff could not lawfully have been required to work under his contract of employment for a continuous period of more than 24 hours without a break of not less than 8 hours.
(b) A declaration that the Plaintiff could not lawfully have been required by the Defendant to work under his contract of employment for so many hours in excess of his standard working week as would foreseeably injure his health, notwithstanding that in consequence the total number of such excess hours worked by him might have amounted on average to fewer than 48 per week."
The prayer for an injunction in paraqraph (ii) is deleted. Similar amendments are made to the writ. The claim for damages remains.
The Authority applied to Master Warren to strike out of the writ and prayer in the statement of claim those parts that sought a declaration that the plaintiff could not lawfully be required to work under his contract for more than 72 hours and an injunction to restrain them from so requiring him. By virtue of the amendment, the Authority now seek to strike out paragraph 1(b) of the prayer. The application is made under RSC Order 18, rule 19. The Master acceded to the application, but on appeal, Mr Harold Bennett Q.C., sitting as a Deputy High Court Judge, allowed the plaintiff's appeal. The Authority appeal to this court.
There is also before the court another appeal. This relates to the Reply in paragraph 4 on which the plaintiff sought to rely, the Unfair Contract Terms Act 1977 section 2(1) and also on a contention that the contract was void on the grounds of public policy. Again the Authority applied to strike out this paragraph pursuant to Order 18, rule 19. Mr Gorman Q.C. acceded to the application. The plaintiff appeals that order. I shall refer to this in more detail hereafter. I turn to the Authority's appeal.
On an application to strike out a pleading under Order 18, rule 19 two considerations apply. Firstly the allegations in the pleading in question must be assumed to be correct. Secondly the jurisdiction can only be exercised if the plea is doomed to failure or is unarguable. Williams & Humbert Ltd v. W & H Trade Marks (Jersey) Ltd [1986] A.C. 368.
It is to be noted that counsel on behalf of the Authority seek only to strike out the relief claim and of that only part. At first sight this is somewhat surprising since the form of relief by way of declaration or injunction is discretionary, and in each case depends upon the underlying cause of action being made out. The explanation of this apparent anomaly is that Mr Beloff Q.C. on behalf of the Authority concedes that there is an arguable case both for a declaration and damages in respect of the requirement to work in excess of 24 hours without a break of 8 hours, since there is no express provision of the contract which entitled them to require this. But he submits that such a claim, whether for damages or declaration, cannot succeed inasmuch as it is founded upon a requirement to work up to 88 hours on average over the week, since the Authority were entitled by the express terms of that contract so to require him.
In support of his submission Mr Beloff Q.C. relied on the case of Tai Hing Cotton Mill Ltd v. Liu Chong Hing Bank (PC) [1986] A.C. 80 and in particular the dictum of Lord Scarman at p. 107B:
"Their Lordships do not believe that there is anything to the advantage of the law's development in searching for a liability in tort where the parties are in a contractual relationship. This is particularly so in a commercial relationship. Though it is possible as a matter of legal semantics to conduct an analysis of the rights and duties inherent in some contractual relationships including that of banker and customer either as a matter of contract law when the question will be what, if any, terms are to be implied or as a matter of tort law when the task will be to identify a duty arising from the proximity and character of the relationship between the parties, their Lordships believe it to be correct in principle and necessary for the avoidance of confusion in the law to adhere to the contractual analysis: on principle because it is a relationship in which the parties have, subject to a few exceptions, the right to determine their obligations to each other, and for the avoidance of confusion because different consequences do follow according to whether liability arises from contract or tort, e.g. in the limitation of action."
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