Ipsofactoj.com: International Cases  Part 10 Case 13 [CAEW]
COURT OF APPEAL, ENGLAND & WALES
(Chairman of the Governors of
St Thomas Becket RC High School)
- vs -
LORD JUSTICE BROOKE
LADY JUSTICE HALE
LORD JUSTICE KAY
5 FEBRUARY 2002
Lady Justice Hale
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.
2. 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.
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.
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).
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.
For the same reason, treatment is often not straightforward or its outcome predictable: while some conditions may respond comparatively quickly and easily to appropriate medication others may only respond, if at all, to prolonged and complicated ‘talking treatments’ or behavioural therapy. There are strong divergences of views amongst psychiatrists on these issues.
In their report on Liability for Psychiatric Illness (Law Com No 249, 1998) at para 1.2, the Law Commission referred to the divergence of academic views on the approach the law should take:
At one end of the scale are those who argue that the same principles that apply to liability for physical injury should be applied to liability for psychiatric illness, and there is no legitimate reason to impose special restrictions in respect of claims for the latter [most forcefully by NJ Mullany and PR Handford in Tort Liability for Psychiatric Damage, 1993]. At the other extreme are those who argue that liability for psychiatric illness should be abandoned altogether. They say that the arbitrary rules which are required to control potential liability are so artificial that they bring the law into disrepute [cogently expressed by Dr J Stapleton, ‘In Restraint of Tort’, in P Birks (ed), The Frontiers of Liability, 1994].
Both the law and the Law Commission have followed a middle course, in some cases treating a recognised psychiatric illness as no different in principle from a physical injury or illness, while in others imposing additional ‘control mechanisms’ so that liability does not extend too far.
The second area of developing understanding is of the nature and extent of occupational stress. We have been referred to three particularly helpful documents. The first is the report of a working party of the Health Education Authority, Stress in the public sector – Nurses, police, social workers & teachers (1988). This discusses the ‘Meaning of Stress’ in appendix 1:
.... as with many words in a living language, the word ‘stress’ has acquired a vague, catch-all meaning, used by different people to mean different things. It is used to describe both physical and mental conditions, and the pressures which cause those conditions. It is also used to describe stress which is beneficial and harmful both in its sources and in its effects.
Hence the definition of stress adopted in that report was ‘an excess of demands upon an individual in excess of their ability to cope’. The report confirmed that the four occupations discussed had much in common in this respect.
Second is the report of the Education Service Advisory Committee of the Health and Safety Commission, Managing occupational stress: a guide for managers & teachers in the schools sector (1990). This adopted a similar definition: ‘.... stress is a process that can occur when there is an unresolved mismatch between the perceived pressures of the work situation and an individual’s ability to cope.’ It confirmed, if confirmation were needed, that teaching can be a stressful profession. It is also a profession which has undergone profound changes in recent years.
The third is a general booklet of guidance from the Health and Safety Executive, Stress at work (1995). This is particularly helpful in distinguishing clearly between pressure, stress, and the physical or psychiatric consequences (p 2):
There is no such thing as a pressure free job. Every job brings its own set of tasks, responsibilities and day-to-day problems, and the pressures and demands these place on us are an unavoidable part of working life. We are, after all, paid to work and to work hard, and to accept the reasonable pressures which go with that.
Some pressures can, in fact, be a good thing. It is often the tasks and challenges we face at work that provide the structure to our working days, keep us motivated and are the key to a sense of achievement and job satisfaction.
But people’s ability to deal with pressure is not limitless. Excessive workplace pressure and the stress to which it can lead can be harmful. They can damage your business’s performance and undermine the health of your workforce.
Stress is defined (p 4) as ‘the reaction people have to excessive pressures or other types of demand placed upon them. It arises when they worry that they can’t cope.’ It can involve both physical and behavioural effects, but these ‘are usually short-lived and cause no lasting harm. When the pressures recede, there is a quick return to normal.’
Stress is not therefore the same as ill-health. But in some cases, particularly where pressures are intense and continue for some time, the effect of stress can be more sustained and far more damaging, leading to longer-term psychological problems and physical ill-health.
Two other important messages emerge from these documents.
First, and perhaps contrary to popular belief, harmful levels of stress are most likely to occur in situations where people feel powerless or trapped. These are more likely to affect people on the shop floor or at the more junior levels than those who are in a position to shape what they do.
Second, stress – in the sense of a perceived mismatch between the pressures of the job and the individual’s ability to meet them – is a psychological phenomenon but it can lead to either physical or mental ill-health or both.
When considering the issues raised by these four cases, in which the claimants all suffered psychiatric illnesses, it may therefore be important to bear in mind that the same issues might arise had they instead suffered some stress-related physical disorder, such as ulcers, heart disease or hypertension.
Differences from other work-related harm
Mr. Hogarth, on behalf of the appellant defendant in the Barber case, has pointed to several differences between this and other kinds of work-related harm, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work. These are in addition to the general differences between physical and psychiatric disorders discussed earlier.
The most significant relates to who knows what. The employer is or should be aware of what is going on in his own factory, school or office. He is much less aware of what is going on in his employees’ minds or in their lives outside work. There are many other people, such as family, friends and colleagues, who are likely to know far more about this than the employer. Indeed, the employee may very well wish to minimise or conceal the true state of affairs from his employer: no-one wants to be thought unable to cope.
The employer is or should be largely in control of the workplace, equipment and physical conditions in which the work is done. He is much less in control of the way in which many of his employees, especially professionals or those who are expected to prioritise their own tasks, choose to do their work and balance the demands of their work and life outside the workplace.
The employer can be expected to take responsibility for keeping the physical risks presented by the workplace to a minimum. But responsibility both for causing and for doing something about its psychological risks may be shared between many people, family, friends and the individual himself, as well as the employer. An individual who recognises that he is experiencing levels of stress which may be harmful to him has to make some decisions about how to respond to this. The employer’s room for manoeuvre may in some cases be limited. At the extreme, his only option may be to dismiss the employee who cannot cope with the job.
There are some jobs which are intrinsically physically dangerous: the most obvious examples are the armed forces, fire-fighting and the police. The employee agrees to run the inevitable risks of the job, although not those which are the result of his employers’ negligence. Psychological pressures are inevitable in all jobs, although greater in some than in others. But it is, as the documents quoted show, rather more difficult to identify which jobs are intrinsically so stressful that physical or psychological harm is to be expected more often than in other jobs. Some people thrive on pressure and are so confident of their abilities to cope that they rarely if ever experience stress even in jobs which many would find extremely stressful. Others experience harmful levels of stress in jobs which many would not regard as stressful at all.
When imposing duties and setting standards, the law tries to strike a balance which is reasonable to both sides. Here there are weighty considerations on each side. It is in everyone’s interests that management should be encouraged to recognise the existence and causes of occupational stress and take sensible steps to minimise it within their organisation. It is in the interest of the individual employees who may suffer harm if their employers do not. It is in the interest of the particular enterprise which may lose efficiency and workers if it does not. It is in the public interest that public services should not suffer or public money be wasted. Concern about this issue arose during a period of great upheaval in the workforce, and in many large organisations, bringing changes in management ethos, instability and insecurity. The documents we have seen all aim to encourage management to take the issue of occupational stress seriously.
The law of tort has an important function in setting standards for employers as well as for drivers, manufacturers, health care professionals and many others whose carelessness may cause harm. But if the standard of care expected of employers is set too high, or the threshold of liability too low, there may also be unforeseen and unwelcome effects upon the employment market. In particular, employers may be even more reluctant than they already are to take on people with a significant psychiatric history or an acknowledged vulnerability to stress-related disorders. If employers are expected to make searching inquiries of employees who have been off sick, then more employees may be vulnerable to dismissal or demotion on ill-health grounds. If particular employments are singled out as ones in which special care is needed, then other benefits which are available to everyone in those employments, such as longer holidays, better pensions or earlier retirement, may be under threat.
Some things are no-one’s fault. No-one can blame an employee who tries to soldier on despite his own desperate fears that he cannot cope, perhaps especially where those fears are groundless. No-one can blame an employee for being reluctant to give clear warnings to his employer of the stress he is feeling. His very job, let alone his credibility or hopes of promotion, may be at risk. Few would blame an employee for continuing or returning to work despite the warnings of his doctor that he should give it up. There are many reasons why the job may be precious to him. On the other hand it may be difficult in those circumstances to blame the employer for failing to recognise the problem and what might be done to solve it.
There is an argument that stress is so prevalent in some employments, of which teaching is one, and employees so reluctant to disclose it, that all employers should have in place systems to detect it and prevent its developing into actual harm. As the above discussion shows, this raises some difficult issues of policy and practice which are unsuitable for resolution in individual cases before the courts. If knowledge advances to such an extent as to justify the imposition of obligations upon some or all employers to take particular steps to protect their employees from stress-related harm, this is better done by way of regulations imposing specific statutory duties. In the meantime the ordinary law of negligence governs the matter.
However, we do know of schemes now being developed and encouraged which recognise and respond to the peculiar problems presented both to employees and employers. The key is to offer help on a completely confidential basis. The employee can then be encouraged to recognise the signs and seek that help without fearing its effects upon his job or prospects; the employer need not make intrusive inquiries or over-react to such problems as he does detect; responsibility for accessing the service can be left with the people who are best equipped to know what the problems are, the employee, his family and friends; and if reasonable help is offered either directly or through referral to other services, then all that reasonably could be done has been done. Obviously, not all employers have the resources to put such systems in place, but an employer who does have a system along those lines is unlikely to be found in breach of his duty of care towards his employees.
3. THE LAW
Several times while hearing these appeals we were invited to go back to first principles. Liability in negligence depends upon three inter-related requirements: the existence of a duty to take care; a failure to take the care which can reasonably be expected in the circumstances; and damage suffered as a result of that failure. These elements do not exist in separate compartments: the existence of the duty, for example, depends upon the type of harm suffered. Foreseeability of what might happen if care is not taken is relevant at each stage of the enquiry. Nevertheless, the traditional elements are always a useful tool of analysis, both in general and in particular cases.
The existence of a duty of care can be taken for granted. All employers have a duty to take reasonable care for the safety of their employees: to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working: see Wilsons & Clyde Coal Co Ltd v English  AC 57. However, where psychiatric harm is suffered, the law distinguishes between ‘primary’ and ‘secondary’ victims. A primary victim is usually someone within the zone of foreseeable physical harm should the defendant fail to take reasonable care: see Page v Smith  AC 155. A secondary victim is usually someone outside that zone: typically such a victim foreseeably suffers psychiatric harm through seeing, hearing or learning of physical harm tortiously inflicted upon others. There are additional control mechanisms to keep liability towards such people strictly within bounds: see Alcock v Chief Constable of South Yorkshire Police  1 AC 310. In Frost v Chief Constable of South Yorkshire Police  2 AC 455, the House of Lords applied that distinction to police officers (and others) who were not themselves within the zone of physical danger caused by the defendant’s negligence, but had to deal with the consequences of catastrophic harm to others in the course of their duties. Lord Steyn observed, at pp 497G to 498A, that
.... the rules to be applied when an employee brings an action against his employer for harm suffered at his workplace are the rules of the law of tort. One is therefore thrown back to the ordinary rules of the law of tort which contain restrictions on the recovery of compensation for psychiatric harm .... The duty of an employer to safeguard his employees from harm could also be formulated in contract .... But such a term could not be wider than the duty imposed by the law of tort.
Taken to its logical conclusion this would apply the same distinction between those inside and those outside the zone of foreseeable risk of physical harm to the employer’s general duty of care to his employees.
We have not been invited to go down that road, no doubt because it is not open to us. In Petch v Commissioners of Customs & Excise  ICR 789, CA, it was accepted that the ordinary principles of employers’ liability applied to a claim for psychiatric illness arising from employment, although the claim failed. In the landmark case of Walker v Northumberland County Council  1 All ER 737, Colman J applied those same principles in upholding the claim. Both have recently been cited with approval in this Court in Garrett v London Borough of Camden  EWCA Civ 395. Also in Frost, Lord Hoffman stated, at p 504F, that
The control mechanisms were plainly never intended to apply to all cases of psychiatric injury. They contemplate that the injury has been caused in consequence of death or injury suffered (or apprehended to have been suffered or as likely to be suffered) by someone else.
As to Walker, he commented, at p 506A, that:
the employee .... was in no sense a secondary victim. His mental breakdown was caused by the strain of doing the work which his employer had required him to do.
In summary, therefore, claims for psychiatric injury fall into four different categories:
tortious claims by primary victims: usually those within the foreseeable scope of physical injury, for example, the road accident victim in Page v Smith  AC 155; some primary victims may not be at risk of physical harm, but at risk of foreseeable psychiatric harm because the circumstances are akin to those of primary victims in contract (see (3) below);
tortious claims by secondary victims: those outside that zone who suffer as a result of harm to others, for example, the witnesses of the Hillsborough disaster in Alcock v Chief Constable of South Yorkshire Police  1 AC 310;
contractual claims by primary victims: where the harm is the reasonably foreseeable product of specific breaches of a contractual duty of care towards a victim whose identity is known in advance, for example, the solicitors’ clients in Cook v Swinfen  1 WLR 457, CA, McLoughlin v Grovers  EWCA Civ 1743, or the employees in Petch v Commissioners of Customs & Excise  ICR 789, Walker v Northumberland County Council  1 All ER 737, Garrett v London Borough of Camden  EWCA Civ 395, and in all the cases before us;
contractual claims by secondary victims: where the harm is suffered as a result of harm to others, in the same way as secondary victims in tort, but there is also a contractual relationship with the defendant, as with the police officers in Frost v Chief Constable of South Yorkshire Police  2 AC 455.
There are, therefore, no special control mechanisms applying to claims for psychiatric (or physical) injury or illness arising from the stress of doing the work which the employee is required to do. But these claims do require particular care in determination, because they give rise to some difficult issues of foreseeability and causation and, we would add, identifying a relevant breach of duty. As Simon Brown LJ pithily put it in Garrett, at para 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 tensions 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 which they ought properly to have averted, there can be no liability.
To say that the employer has a duty of care to his employee does not tell us what he has to do (or refrain from doing) in any particular case. The issue in most if not all of these cases is whether the employer should have taken positive steps to safeguard the employee from harm: his sins are those of omission rather than commission. Mr. RF Owen QC, for the appellant defendant in the Bishop case, saw this as a question of defining the duty; Mr. Ralph Lewis QC, for the appellant defendant in the Jones case, saw it as a question of setting the standard of care in order to decide whether it had been broken. Whichever is the correct analysis, the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable in a person of ‘ordinary fortitude’. The employer’s duty is owed to each individual employee, not to some as yet unidentified outsider: see Paris v Stepney Borough Council  AC 367. The employer knows who his employee is. It may be that he knows, as in Paris, or ought to know, of a particular vulnerability; but he may not. Because of the very nature of psychiatric disorder, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury. Shylock could not say of a mental disorder, ‘If you prick us, do we not bleed?’ But it may be easier to foresee in a known individual than it is in the population at large. The principle is the same as in other cases where there is a contractual duty of care, such as solicitors’ negligence: see Cook v Swinfen  1 WLR 457; McLoughlin v Grovers  EWCA Civ 1743.
However, are there some occupations which are so intrinsically stressful that resulting physical or psychological harm is always foreseeable? Mr. Lewis appeared to accept that this was so: he gave the examples of traffic police officers who regularly deal with gruesome accidents or child protection officers who regularly investigate unthinkable allegations of child abuse. Some warrant for this might be drawn from the way in which Dillon LJ formulated the foreseeability test in Petch, at pp 796H to 797A:
.... unless senior management in the defendant’s department were aware or ought to have been aware that the plaintiff was showing signs of impending breakdown, or were aware or ought to have been aware that his workload carried a real risk that he would have a breakdown, then the defendant were not negligent in failing to avert the breakdown ....
Later, at p 798, he referred to the same two-pronged test:
.... but Mr. Bamfield had no knowledge of any sign whatsoever of impending danger, nor was he bound to regard the plaintiff’s workload, so eagerly accepted, as per se dangerous.
These observations were made in the context of a particular employee in a particular high grade civil service post. They were not made in the context of such posts as a whole. The notion that some occupations are in themselves dangerous to mental health is not borne out by the literature to which we have already referred: it is not the job but the interaction between the individual and the job which causes the harm. Stress is a subjective concept: the individual’s perception that the pressures placed upon him are greater than he may be able to meet. Adverse reactions to stress are equally individual, ranging from minor physical symptoms to major mental illness.
All of this points to there being a 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. The answer to the foreseeability question will therefore depend upon the inter-relationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him. As was said in McLoughlin v Grovers  EWCA Civ 1743, expert evidence may be helpful although it can never be determinative of what a reasonable employer should have foreseen. A number of factors are likely to be relevant.
These include the nature and extent of the work being done by the employee. Employers should be more alert to picking up signs from an employee who is being over-worked in an intellectually or emotionally demanding job than from an employee whose workload is no more than normal for the job or whose job is not particularly demanding for him or her. 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. Also relevant is whether there are signs that others doing the same work are under harmful levels of stress. There may be others who have already suffered injury to their health arising from their work. Or there may be an abnormal level of sickness and absence amongst others at the same grade or in the same department. But if there is no evidence of this, then the focus must turn to the individual, as Colman J put it in Walker, at p 752e:
Accordingly, the question is whether it ought to have been foreseen that Mr. Walker was exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy workload.
More important are the signs from the employee himself. Here again, it is important 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. Walker is an obvious illustration: Mr. Walker was a highly conscientious and seriously overworked manager of a social work area office with a heavy and emotionally demanding case load of child abuse cases. Yet although he complained and asked for help and for extra leave, the judge held that his first mental breakdown was not foreseeable. There was, however, liability when he returned to work with a promise of extra help which did not materialise and experienced a second breakdown only a few months later. If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental or physical health, then the employer will have to think what can be done about it.
Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee’s work or from complaints made about it by the employee or from warnings given by the employee or others around him.
But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent he is bound to probe further into what he is told? 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. It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive enquiries. Generally he is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee’s permission to obtain further information from his medical advisers. Otherwise he would risk unacceptable invasions of his employee’s privacy.
It was argued that the employer is entitled to take the expiry of a GP’s certificate as implicitly suggesting that the employee is now fit to return to work and even that he is no longer at risk of suffering the same sort of problem again. This cannot be right. A GP’s certificate is limited in time but many disorders are not self-limiting and may linger on for some considerable time. Yet an employee who is anxious to return to work, for whatever reason, may not go back to his GP for a further certificate when the current one runs out. Even if the employee is currently fit for work, the earlier time-limited certificate carries no implication that the same or a similar condition will not recur. The point is a rather different one: 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. The employer is usually entitled to take that at face value unless he has other good reasons to think to the contrary: see McIntyre v Filtrona Ltd, Court of Appeal, 12 March 1996.
These then are the questions and the possible indications that harm was foreseeable in a particular case. But how strong should those indications be before the employer has a duty to act? Mr. Hogarth argued that only ‘clear and unequivocal’ signs of an impending breakdown should suffice. That may be putting it too high. 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.
Breach of duty
What then is it reasonable to expect the employer to do? His duty is to take reasonable care. What is reasonable depends, as we all know, upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk: see the oft-quoted summary of Swanwick J in Stokes v Guest, Keen Nettlefold (Nuts & Bolts) Ltd  1 WLR 1776, at p 1783D-E.
It is essential, therefore, once the risk of harm to health from stresses in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that that breach of duty caused the harm). But in every case it is necessary to consider what the employer not only could but should have done. We are not here concerned with such comparatively simple things as gloves, goggles, earmuffs or non-slip flooring. Many steps might be suggested: giving the employee a sabbatical; transferring him to other work; redistributing the work; giving him some extra help for a while; arranging treatment or counselling; providing buddying or mentoring schemes to encourage confidence; and much more. But in all of these suggestions it will be necessary to consider how reasonable it is to expect the employer to do this, either in general or in particular: the size and scope of its operation will be relevant to this, as will its resources, whether in the public or private sector, and the other demands placed upon it. Among those other demands are the interests of other employees in the workplace. It may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others. As we have already said, an employer who tries to balance all these 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.
Moreover, the employer can only reasonably be expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employer’s own good. As Devlin LJ put it in Withers v Perry Chain Co Ltd  1 WLR 1314, at p 1320,
The relationship between employer and employee is not that of schoolmaster and pupil .... The employee is free to decide for herself what risks she will run .... if the common law were otherwise it would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him.
Taken to its logical conclusion, of course, this would justify employers in perpetuating the most unsafe practices (not alleged in that case) on the basis that the employee can always leave. But we are not here concerned with physical dangers: we have already rejected the concept of an unsafe occupation for this purpose. If there is no alternative solution, it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable.
Having shown a breach of duty, it is still necessary to show that the particular breach of duty found caused the harm. It is not enough to show that occupational stress caused the harm. Where there are several different possible causes, as will often be the case with stress related illness of any kind, the claimant may have difficulty proving that the employer’s fault was one of them: see Wilsher v Essex Area Health Authority  AC 1074. This will be a particular problem if, as in Garrett, the main cause was a vulnerable personality which the employer knew nothing about. However, the employee does not have to show that the breach of duty was the whole cause of his ill-health: it is enough to show that it made a material contribution: see Bonnington Castings v Wardlaw  AC 613.
Apportionment and quantification
Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible: see e.g. Thompson v Smiths Ship Repairers (North Shields) Ltd  QB 405; Holtby v Brigham & Cowan (Hull) Ltd  PIQR Q293; Rahman v Arearose Ltd  QB 351. Thompson and Holtby concerned respectively deafness and asbestosis developed over a long period of exposure; not only were different employers involved but in Thompson some of the exposure by the same employer was tortious and some was not. Apportionment was possible because the deterioration over particular periods of time could be measured, albeit in a somewhat rough and ready fashion.
It is different if the harm is truly indivisible: a tortfeasor who has made a material contribution is liable for the whole, although he may be able to seek contribution from other joint or concurrent tortfeasors who have also contributed to the injury. In Rahman, Laws LJ quoted the following illuminating discussion from Prosser & Keeton on Torts, 5th ed (1984) pp 345-346:
If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it. If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effect of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule .... If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries .... There will be obvious difficulties of proof as to the apportionment of certain elements of damages, such as physical and mental suffering and medical expenses, but such difficulties are not insuperable, and it is better to attempt some rough division than to hold one defendant [liable] for the wound inflicted by the other. On the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff’s rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff’s barn.
In Bonnington Castings v Wardlaw  AC 613, the employee was exposed to harmful dust, all of it at work, but some of it in breach of duty and some not: the employer was held liable for the whole of the damage caused by the combination of the ‘guilty’ and ‘innocent’ dust. The question of apportionment was not argued. The problem there, as in McGhee v National Coal Board  1 WLR 1, HL, was whether the claimant could prove causation at all, given the possible contribution of both ‘guilty’ and ‘innocent’ dust to his illness.
As Stuart Smith LJ commented in Holtby, at p Q300,
[The claimant] will be entitled to succeed if he can prove that the defendants’ tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution. However, if the point is never raised or argued by the defendant, the claimant will succeed in full, as in Bonnington and McGhee.
Clarke LJ went further and placed at least the evidential burden of establishing the case for apportionment upon the defendant, at p Q305:
It seems to me that once the claimant has shown that the defendant’s breach of duty has made a material contribution to his disease, justice requires that he should be entitled to recover in full from those defendants unless they show the extent to which some other factor, whether it be ‘innocent’ dust or ‘tortious’ dust caused by others, also contributed.
But he acknowledged that these cases should not be determined by the burden of proof: assessments of this kind are ‘essentially jury questions which have to be determined on a broad basis’.
Hence the learned editors of Clerk & Lindsell on Torts, 18th edition (2000), at para 2-21, state that ‘Where it is possible to identify the extent of the contribution that the defendant’s wrong made to the claimant’s damage, then the defendant is liable only to that extent, and no more’. This may raise some difficult factual questions. Calascione v Dixon (1993) 19 BMLR 97 is an example of apportionment between different causes, one the fault of the defendant, the other not: the claimant suffered post traumatic stress disorder as a result of seeing the aftermath of the accident in which her son was killed, but her normal grief reaction had become abnormal as a result of later events. In Vernon v Bosley (No 1)  1 All ER 577, the majority in this court held that the whole of the claimant’s psychiatric injury was the result of the accident in which his two daughters died, although Stuart Smith LJ dissented on the ground that it had not been shown that it was caused by his witnessing the unsuccessful attempts to rescue them, that is by the breach of the defendant’s duty towards him. These were both, of course, secondary victims. Rahman is an example of apportionment of the psychiatric injury suffered by a primary victim between different tortfeasors. Neither tort caused the whole injury, some was caused mainly by one, some mainly by the other, and some by their combined effect. Neither tortfeasor would have been held liable for the whole.
Hence if it is established that the constellation of symptoms suffered by the claimant stems from a number of different extrinsic causes then in our view a sensible attempt should be made to apportion liability accordingly. There is no reason to distinguish these conditions from the chronological development of industrial diseases or disabilities. The analogy with the polluted stream is closer than the analogy with the single fire. Nor is there anything in Bonnington Castings v Wardlaw  AC 613 or McGhee v National Coal Board  1 WLR 1 requiring a different approach.
Where the tortfeasor’s breach of duty has exacerbated a pre-existing disorder or accelerated the effect of pre-existing vulnerability, the award of general damages for pain, suffering and loss of amenity will reflect only the exacerbation or acceleration. Further, the quantification of damages for financial losses must take some account of contingencies. In this context, one of those contingencies may well be the chance that the claimant would have succumbed to a stress-related disorder in any event. As it happens, all of these principles are exemplified by the decision of Otton J at first instance in Page v Smith  PIQR Q55 (and not appealed by the claimant: see Page v Smith (No 2)  1 WLR 855). He reduced the multiplier for future loss of earnings (as it happens as a teacher) from 10 to 6 to reflect the many factors making it probable that the claimant would not have had a full and unbroken period of employment in any event and the real possibility that his employers would have terminated his employment because of his absences from work.
From the above discussion, the following practical propositions emerge:
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 (para 22). The ordinary principles of employer’s liability apply (para 20).
The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components
an injury to health (as distinct from occupational stress) which
is attributable to stress at work (as distinct from other factors) (para 25).
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 (para 23). 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 (para 29).
The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (para 24).
Factors likely to be relevant in answering the threshold question include:
The nature and extent of the work done by the employee (para 26). 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 of 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?
Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from 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?
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 enquiries of his medical advisers (para 29).
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 (para 31).
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 practicability of preventing it, and the justifications for running the risk (para 32).
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 (para 33).
An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (para 34).
An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (paras 17 and 33).
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 (para 34).
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 (para 33).
The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (para 35).
Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39).
The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42).
We will now apply these principles to the facts of the four cases before us. For convenience we are including only a brief summary of the individual cases in the main body of this judgment. They are given more extensive treatment in the Appendix.
5. MRS. HATTON
Mrs. Hatton began teaching in 1976. From 1980 to 1995 she taught French at a comprehensive school in Huyton, Liverpool. In October 1995 she was signed off from work because of depression and debility and never returned. She retired on ill health grounds in August 1996. The defendant school governors appeal against the order of His Honour Judge Trigger in the Liverpool County Court on 7 August 2000 awarding her a total of £90,765.83 in damages and interest. His findings and the evidence are discussed at paras 75 to 127 of the Appendix.
She had two months off work suffering from depression in 1989, following the break-up of her marriage. Her two sons, born in about 1983 and 1988, lived with her. But she continued to enjoy her work and was coping with the workload until September 1992.
Mrs. Hatton’s workload was no greater or more burdensome than that of any other teacher in a similar school. Nor had she complained to anyone about it. Certain changes had taken place in the school years 1992 to 1993 and 1993 to 1994 but their effect had been absorbed by September 1994. In 1992 the school went over to a modular GCSE French course. No other teacher found that this course involved more preparation and marking after the first few weeks. Mrs. Hatton did not complain. The head of her department was absent from January 1993 and retired in May 1993 and supply teachers were used for a while. No-one knew that this was involving her in much more work outside school. In September 1993 it was decided to use English rather than supply teachers to help out with French. Mrs. Hatton was off work for a considerable part of 1993 to 1994 but did not tell anyone at the school that she attributed her absences to overwork. In September 1994 a new head of department was appointed and the use of English teachers stopped. Her work regime this year was entirely normal compared with other French teachers. The only difference in the year from September 1995 was a retiming and reduction by one in her free periods, about which she did complain to the deputy head.
Mrs. Hatton’s pattern of absence and illness was on the face of it readily attributable to causes other than stress at work. In January 1994 she was off work for a month following an attack in the street. In April 1994 one of her sons had to go into hospital for a considerable period. A deputy head sent her home. She remained away for the rest of the term, certified with depression and debility. She saw a stress counsellor in August 1994 but did not tell the school about this. When she returned in September 1994 she attributed her absence to her son’s illness. During the school year 1994-5 she had no absences due to depression or debility, but she did have a number of absences for minor physical ailments, including 19 days for sinusitis. She was a smoker who had suffered from this before.
Her workload and her pattern of absence taken together could not amount to a sufficiently clear indication that she was likely to suffer from psychiatric injury as a result of stress at work such as to trigger a duty to do more than was in fact done. The school could not reasonably be expected to probe further into the causes of her absence in the summer term 1994 when she herself had attributed it to problems at home which the school knew to be real. Hence the claim must fail at the first threshold of foreseeability.
Even if the breakdown had been foreseeable, the judge would have had to resolve the conflict in the expert evidence as to its causes and what if anything the school might have done to prevent it. The judge was entitled to find that her own perception of stress at work was at least a contributory factor. But he should have had difficulty in concluding that it was the only factor, given the evidence of the defendants’ expert witness, Dr Wood. He should also have identified a specific breach of duty which had contributed to the illness: an omission to do something without which it would in all probability not have happened. If there was no breach of duty in not probing further into her account of the summer of 1994, the only possible candidates are a failure to probe further into her pattern of physical illness in 1994 to 1995 or to react to her complaint about the 1995 timetable. It would, however, be difficult to conclude that anything the school could have done by that stage would have made a difference.
This is a classic case where no-one can be blamed for the sad events which brought Mrs. Hatton’s teaching career to an end. It was sought to meet some of the obvious difficulties in her case by the argument that teaching is such a stressful profession that by 1995 all employers should have had in place systems which would overcome the reluctance of people like Mrs. Hatton to reveal their difficulties and seek help. We have already explained why we take the view that, although an employer who does have such a system is unlikely to be found in breach of duty, it is not for this court to impose such a duty upon all employers, or even upon all employers in a particular profession.
6. MR. BARBER
Mr. Barber was also an experienced secondary school teacher. He was appointed head of maths at East Bridgwater Community School in 1984 and remained there until 12 November 1996 when he ceased work on medical advice. He accepted early retirement on 31 March 1997. The defendant local education authority appeal against the order of His Honour Judge Roach in the Exeter County Court on 8 March 2001 awarding him a total of £101,041.59 in damages and interest. His findings and the evidence are discussed in paras 139 to 163 of the Appendix.
The school was under particular pressure in the year 1995 to 1996. It was a comprehensive school in a deprived area of Bridgwater. Its roll had more than halved between the mid-1980s and the mid-1990s and resources had fallen accordingly. Restructuring became essential. However, there was comparatively little effect upon the maths department, as opposed to others. In September 1995 Mr. Barber, in common with other heads of department, became the ‘area of experience co-ordinator’ in maths. There was still the same number of maths teachers but the two former deputy heads of his department were given pastoral rather than management roles. To keep his former salary level Mr. Barber took on another responsibility, as project manager in charge of publicity and media relations. He was working long hours.
The evidence was that all the area of experience co-ordinators, and the senior management team, were suffering from work over-load at this time. In addition to the restructuring and worries over falling rolls, the school was due for an Ofsted inspection in autumn 1996. While everyone was in the same boat, the evidence did not support the suggestion that Mr. Barber was more overworked than any of his peers in these difficult circumstances. The judge found that his workload was not so extreme as to put his employers on notice.
Mr. Gill, one of the two deputy heads, was in charge of the timetable and curriculum and saw all the co-ordinators periodically. In October 1995 Mr. Barber told him that the loss of his deputies was resulting in more work, and in February 1996 that work overload was affecting both him and the maths department. Mr. Gill did not appreciate that Mr. Barber was by then finding things too much; he advised Mr. Barber to prioritise and delegate more.
Mr. Barber had developed depressive symptoms during the autumn 1995 term but told no-one at school about these. He felt worse during the spring 1996 term but again told no-one at school. He explored the possibility of other jobs or taking early retirement. In May 1996 he had three weeks off work with depression: he was surprised to be told the diagnosis as he had never thought of himself in that way. When he came back he had an informal meeting with the Head, Mrs. Hayward, and raised his concerns that he was finding things difficult. On 16 July 1996, he saw Mrs. Newton, the other deputy head, and told her that he could not cope and that the situation was becoming detrimental to his health. She referred him to Mr. Gill, who was more sympathetic. This was very shortly before the end of the summer term. He did not tell either of them about the symptoms of weight loss, lack of sleep and out of body experiences which he described in his evidence.
Mrs. Hayward retired unexpectedly at the end of term and Mr. Gill became acting headmaster. On return for the autumn term he expressed some concern about Mr. Barber and asked a colleague to keep an eye on him. Mr. Barber had continued to suffer symptoms of stress over the summer holidays but had not been able to discuss these with his doctor. He first raised them with the doctor in October. In November he lost control in the classroom and was advised to stop work immediately.
This was a classic case in which it is essential to consider at what point the school’s duty to take some action was triggered, what that action should have been, and whether it would have done some good. Instead, the judge first considered whether the illness was caused by stress at work and reached the conclusion that it was. No doubt this was because the school had argued that Mr. Barber’s breakdown was caused by other things, and the judge had to resolve that issue. There was certainly evidence entitling him to hold that stress at work had made a material contribution. But that in itself was not enough to lead to the conclusion that the school was in breach of duty or that its breach caused the harm.
Mr. Barber did not think of himself as a candidate for psychiatric illness until it was diagnosed in May 1996. The first the school knew of any possible adverse effects upon his health of the difficulties at work which they were all experiencing was after his return. He simply told Mrs. Hayward that he was not coping very well. He made a more explicit reference to his health to Mrs. Newton and Mr. Gill, but did not explain the symptoms from which he was suffering. This was just before the summer holidays, which are usually a source of relaxation and recuperation for hard-pressed teachers. Indeed he was unable to tell his own doctor about his symptoms until the month before the crisis arose. He told no-one at school of any problems during that term.
In those circumstances it is difficult indeed to identify a point at which the school had a duty to take the positive steps identified by the judge. It might have been different if Mr. Barber had gone to Mr. Gill at the beginning of the autumn term and told him that things had not improved over the holidays. But it is expecting far too much to expect the school authorities to pick up the fact that the problems were continuing without some such indication. Given the speed with which matters came to a head that term it might be difficult to sustain the judge’s finding that temporary help would have averted the crisis. But in our view the evidence, taken at its highest, does not sustain a finding that they were in breach of their duty of care towards him.
7. MRS. JONES
Mrs. Jones was employed as an administrative assistant at Trainwell, a local authority training centre, from August 1992 until 20 January 1995 when she went off sick with anxiety and depression. She never returned and was made redundant when the centre closed at the end of 1996. The defendant local authority appeal against the order of His Honour Judge Nicholl in the Birmingham County Court on 31 October 2000 awarding her a total of £157,541 damages and interest. The judge’s findings and the evidence are discussed at paras 176 to 199 of the Appendix.
Mrs. Jones’ job was unique, a new post resulting from the consolidation of training activities in one site. The tasks were varied and the deadlines tight. They included submitting monthly claims to the local Training and Enterprise Council on which the whole operation depended. The judge found that she was having to work grossly excessive hours over the 37 per week required by her contract of employment. There was unchallenged evidence that her personnel officer, Mr. King, had acknowledged in February 1993 that they knew it was a gamble to expect one person to do the work of two to three.
She complained of over-work to her immediate managers, Mr. Papworth and his deputy, from an early stage. She complained to Mr. King at head office in February 1993. She also complained to him of unfair treatment and that she had been threatened with non-renewal of her temporary post if she persisted in her complaints of over-work. He said that he would try to get her extra help. Extra help was earmarked for her by Mr. Papworth’s superior but diverted by Mr. Papworth to other tasks. In July 1994, Mrs. Jones complained to Mrs. York, who had taken over as her personnel officer, in a five page document listing the problems under ‘health’, ‘excessive workload’, ‘equal opportunities’, and ‘managerial disagreements’. Once again it was noted that extra help should be provided but none was forthcoming. In November 1994, Mrs. Jones invoked the formal grievance procedure, complaining of discrimination in her unsuccessful application for an instructor’s job at Trainwell and harassment during her time there which had affected her health. The grievance hearing did not take place until January 1995 when it was adjourned. She went off sick shortly afterwards.
The judge also found that she had been ‘harassed’ by Mr. Papworth. He meant that she had been treated unreasonably in such matters as his reaction to her complaints of over-work, dismissing these with the unfounded suggestion that she had more than enough time to do what was required of her, threatening her with loss of her job if she complained, failing to allocate the extra help provided to her, and completely inappropriate behaviour around the grievance hearing. This was not a case like Mr. Barber’s where everyone was over-worked and under pressure, but one where the job itself made unreasonable demands upon an employee in a comparatively junior grade, and the management response to her complaints was itself unreasonable.
Mrs. Jones did not go off work sick during any of this time. She did not even consult her GP until March 1994, when she consulted him about abdominal problems which he noted might be psychosomatic. Thereafter she suffered from headaches which were not eased by multiple analgesics, although he diagnosed migraine rather than psychiatric illness. There was therefore no specific medical event which might have alerted her employers to the risk of the breakdown which occurred in January 1995.
However, the employers did know that excessive demands were being placed upon Mrs. Jones. They also knew that she was complaining of unreasonable behaviour by her immediate manager. These were taken sufficiently seriously for extra help to be arranged, not once but twice, but it was not actually provided. She made two written formal complaints, one in July and one in November 1994, that problems at work were causing harm to her health. It was not disputed that they did in fact cause her breakdown in January 1995.
The question, therefore, is not whether they had in fact caused harm to her health before January 1995, but whether it was sufficiently foreseeable that they would do so for it to be a breach of duty for the employers to carry on placing unreasonable demands upon her and not to follow through their own decision that something should be done about it. We have concluded, not without some hesitation, that the evidence before the judge was sufficient to entitle him to reach the conclusion that it was. We are conscious that the council relied mainly on the evidence of Mr. Papworth, which the judge did not find impressive. They did not call either Mr. King or Mrs. York to explain what they had made of Mrs. Jones’ complaints, and in particular her complaints in 1994 of the adverse effect that these problems were having on her health. Unlike the other cases before us, this was one such as was envisaged by Lord Slynn in Waters v Commissioner of Police of the Metropolis  4 All ER 934, at 938c, where the employer knew that the employee was being badly treated by another employee and could have done something to prevent it.
Once it is concluded that the combination of the way in which she was being treated and her formal complaints about it made injury to her health foreseeable, it is not difficult to identify what might have been done to prevent the injury which in fact occurred. The judge was entitled to conclude that failure to do this caused her breakdown. There was no challenge to the quantification of damages in this case. We have not therefore been able to consider whether any of the matters discussed earlier in this judgment might have led to any modification of the award. Our conclusion on liability should not be taken as any indication of our view on the appropriate measure of damages in this or any other such case.
8. MR. BISHOP
Mr. Bishop worked for the defendant company from 1979 until February 1997 when he had a mental breakdown and attempted suicide. He never returned to work and was dismissed in 1998. The defendant appeals against the order of His Honour Judge Kent-Jones in the Leeds County Court on 26 January 2001 awarding him general damages of £7,000 and adjourning his claim for loss of earnings. The judge’s findings and the evidence are discussed in paras 211 to 223 of the Appendix.
The defendant was taken over by an American company in 1992 and re-organisation began. New shift patterns were introduced in 1994. Work was re-organised so that employees were expected to do a greater variety of tasks. Mr. Bishop was at that time employed on mixer cleaning and graphite blowing. But in 1995 the mixer cleaning tasks were spread among other employees for health and safety reasons. Mr. Bishop was employed mainly in receiving and distributing raw materials. Most employees welcomed the new shifts and coped well with the re-organisation. Mr. Bishop did not. He was a meticulous worker, set in his ways, who found it hard to adjust and to make the very limited decisions now expected of him.
He complained about this to his manager, Mr. Fairhurst, and asked to go back to his old work. His opposite number on the alternating shift also mentioned to Mr. Fairhurst, and less formally to the foreman, his concern that Mr. Bishop was not coping. Mr. Fairhurst explained to Mr. Bishop that there was nothing he could do: his old job was no longer available and he could not rearrange the work so as to give Mr. Bishop what he wanted. He tried to reassure Mr. Bishop that he was doing a good job and had nothing to worry about.
Nevertheless, Mr. Bishop did worry. He went to see his GP in November 1996. He was advised to change his job. He did not tell his employers about this. He was away from work between 24 January and 16 February 1997. Some of this time he would have been off shift. For the other times he submitted two sick notes referring to ‘neuroasthenia’. He returned to work for two days, after which there was a holiday and then the usual four days off. He returned on 24 February and his breakdown took place the following day.
There was nothing unusual, excessive or unreasonable about the demands which were being placed upon Mr. Bishop by his work. The sad fact was that he was unable to cope with the changes. His employers knew that he was unhappy and wanted to go back to the old ways, but they were not told of the advice given to him by his doctor. The two sicknotes were not in themselves such clear signs of a risk to his mental health that a reasonable employer should have realised that something should be done.
Even if they had been, there was nothing that the employer could reasonably be expected to do. The job that he wanted was no longer available. The work which was available could not be re-organised to suit one employee. The reality was that the GP’s advice was correct: the only solution would have been to dismiss him. The employer could not be in breach of duty for failing to dismiss an employee who wanted to continue and master the job despite the advice given to him by his own doctor.
We therefore allow the defendants’ appeals in the cases of Mrs. Hatton, Mr. Barber and Mr. Bishop. Not without some hesitation, we dismiss the appeal in the case of Mrs. Jones.
A P P E N D I X
A. MRS. HATTON
Mrs. Penelope Hatton taught French at the school which became known as St Thomas a Becket, Huyton between January 1980 and October 1995. She then had a breakdown in her health. She retired on health grounds in August 1996. Judgment was entered in her favour for £90,765.83 on the grounds that the school authorities had failed to take reasonable steps to protect her from suffering her stress-related psychiatric illness. They appeal to this court on liability and on issues relating to damage and mitigation. By a respondent’s notice Mrs. Hatton seeks to uphold the judgment on liability on grounds not relied on by the judge.
One feature of this case was that Mrs. Hatton never complained to anyone at the school that she was being overworked. Indeed, when the school’s head teacher asked her when she returned to the school in September 1994 after spending nearly a whole term at home with a depressive illness whether there was anything the school could do to help, she said that there was not, and that her problems lay at home. Another was the fact that although the judge heard oral evidence over three and a half days, and also received a large amount of documentary evidence, in his short judgment he did not refer to a number of significant parts of the evidence, or explain why he preferred the evidence given by Mrs. Hatton to the evidence given by others. So far as the evidence of the three expert witnesses was concerned, he mentioned one of them once and the others not at all. It has therefore been necessary for this court to examine all the evidence in some detail.
The history can conveniently be divided into the following periods of time:
Prior to September 1992;
September 1992 – July 1993;
September 1993 – July 1994;
September 1994 – July 1995;
September – October 1995.
2. The history prior to September 1992
(i) The judge’s findings
Mrs. Hatton got her first teaching post at a different school in September 1976. She moved to the defendants’ school in January 1980 as second in command of the modern languages department. The head of the department was Mr. Treanor. Between 1980 and 1985 she was allowed up to five 80 minute free periods each week. She could prepare much of her teaching work and do other tasks like marking during school hours. She would also spend one or two hours each evening on tasks like these. She taught French up to A level standard, and found the work of teaching students of that aptitude satisfying and fulfilling. By the mid-1980s, however, when the school amalgamated with another school, there were no children taking A level French. She continued to have four free periods each week following the amalgamation, and her workload generally did not increase. Indeed, the pupil-teacher ratio in the department did not alter materially between 1985 and 1996.
(ii) Other matters not recorded by the judge
Mrs. Hatton was married to a policeman, by whom she had two sons. Her marriage broke up in 1989, and thereafter she lived by herself with the two boys. She was off work for two months that year, suffering from depression. She told the judge that until the start of the 1991-2 academic year she enjoyed her job and was able to cope with the workload. The French department was then staffed by Mr. Treanor, Mrs. Hatton and one other teacher. She said that she thought she had started teaching children with special educational needs in Years 10 and 11 that year, but in her witness statement she had said she began teaching these children six years earlier. It was common ground on the appeal that she was still coping with her workload until September 1992.
3. September 1992 – July 1993
(i) The judge’s findings
In September 1992 Mr. Treanor decided that GCSE French should now be taught in a modular form. The judge said that Mrs. Hatton, along with many other teachers, found that this involved far more preparation and far more marking. An added complication was caused by the fact that Mr. Treanor became unwell in January 1993, suffering from stress and anxiety. He retired on grounds of ill health in May 1993. Miss Hampson, the head of English, was put in charge of the French department, and arrangements were made to engage supply teachers to support Mrs. Hatton and the other French teacher.
The judge found that these two teachers had to do extra work to help the supply teachers prepare their lessons, and that from 1993 onwards Mrs. Hatton found that her out of classroom work was increasing to rather more than one or two hours an evening. He also said that the teaching of French to children with special educational needs created difficulties for the teachers.
(ii) Other matters not recorded by the judge
There was a conflict of evidence about the extra demands made by modular teaching which the judge did not identify, much less resolve. Mrs. Hatton said that it was agreed with Mr. Treanor that she would teach modular French to the less able pupils in Years 10 and 11, while the other teacher would continue teaching the traditional GCSE course to the abler pupils. She accepted that the burden that modular French imposed on a teacher varied with the ability of the children being taught. The tests for pupils of lower ability (whom she was teaching, at any rate during this initial year) were generally multiple choice tests requiring one-word answers, and the marking was quick and easy. The only administrative task imposed on her, except for a period immediately following Mr. Treanor’s departure, was to select the best result for each child in each skills area at the end of term and pass it to the head of department. She told the judge that parts of the modular course were more demanding than conventional GCSE and parts were less demanding.
Mrs. Hatton complained that because the modular course had no set course work, she had to dip into text books and prepare her own worksheets. She said it was a totally different type of syllabus. Sometimes there would be two tests in one week, one in another, and three in another, so that it was an ongoing process of testing which had to be recorded and marked and set in an exam situation.
The judge received unchallenged evidence from two other French teachers who told him that after the first two or three weeks modular French involved no extra work. Mrs. Parry, who joined the school as head of the French department in September 1994, said that it was only during the first two or three weeks that she spent as much time as Mrs. Hatton said was needed for preparation and marking. Teachers were provided with the syllabus, and the teaching demands were not significantly different from conventional GCSE teaching. Mrs. Sansbury, who came to the school as a 23-year old newly qualified supply teacher the following year, and who took over Mrs. Hatton’s classes after she left, gave evidence to similar effect. It was common ground that there was, in fact, no evidence to support the judge’s finding that any other teacher, let alone many other teachers, found that modular teaching involved far more preparation and far more marking. There was also no evidence that Mrs. Hatton had complained to anyone that she found modular teaching burdensome.
In these circumstances Mr. Collender QC, who appeared for the school, contended that the judge should have found that the school authorities neither knew nor ought to have known that the move to modular French would impose a materially different teaching burden on Mrs. Hatton, and that it did not in fact impose such a burden. Mr. Atherton, who appeared for Mrs. Hatton, maintained that there was no evidence that the school gave any consideration, in terms of additional hours, to the effect of introducing modular French, or to the effect on Mrs. Hatton when she had to take over the administration of modular French immediately after Mr. Treanor’s departure. He said that it was axiomatic that teachers will vary in their responses to changes at work, and that the judge was entitled to accept the gist of Mrs. Hatton’s evidence about the burden it imposed on her. It appears to us that the judge ought to have made findings about these matters.
So far as supply teaching is concerned, the only evidence about the extra work this created during school hours was that from time to time Mrs. Hatton had to leave her class and help a supply teacher set the work. Extra marking and printing extra work sheets took up about two hours a week while the supply teachers were there. It was common ground that nobody at the school knew how many hours Mrs. Hatton was working out of school hours. Mr. Atherton maintained that an attentive head teacher would have realised the extra work she would have to do out of school as a result of the various changes and disruptions in 1992-3.
4. September 1993 – July 1994
(i) The judge’s findings
Mr. Wood became head teacher in September 1993. By now it had been decided to use teachers from the English department to teach French instead of supply teachers. Between 5th and 24th November 1993 Mrs. Hatton was off work with a viral infection. In January 1994 she was attacked in the street and stayed off work for a month. She then returned to work for the rest of the term, apart from the odd day’s absence. From 18th April 1994 she was off work for 62 days. Her GP certified that her absence was due to depression and debility. The judge said that during that absence her eldest son was sufficiently ill to warrant detention in hospital for a considerable period.
The judge found as a fact that one of the major precipitating factors which caused her long absence from work was the stress she was suffering consequent on the increased duties and pressures being applied on her at the school. The school knew that she was a single mother and that one of her children was in hospital and, from the sick notes, that she was suffering from fairly large-scale depression and debility. The school did not, however, know that she went to see a stress counsellor during the summer holidays of 1994.
(ii) Other matters not recorded by the judge
The judge got the sequence of events wrong in April 1994. Mr. MacNamara, one of the deputy head teachers, gave unchallenged evidence that he saw Mrs. Hatton looking dreadful one day at school. When he asked her the reason, she said she had been up all night with her son who was seriously ill at the hospital. Mr. MacNamara sent her home, and this was the start of her long absence from work.
There was a lot of evidence about the events of this year which the judge did not mention. The number of special needs classes Mrs. Hatton taught had now been reduced from five to two. She conceded that she was now used to teaching modular French. The use of supply teachers had ceased. She conceded that she was now doing normal teaching, although she complained of the administrative work connected with modular French. She was away from school in any event (including school holidays) for 11 of the 25 weeks between the start of the winter term and 18th April 1994, when her prolonged absence began. She suffered anxiety, as well as physical injuries, as a result of the assault, which took some time to settle.
Mr. Collender complains that the judge did not mention, much less give any reasons for rejecting, the evidence given by Dr Wood, his client’s medical expert, about the likely cause of Mrs. Hatton’s long absence in April-July 1994. Since this long absence, and the school’s reaction to it, marks the high-water mark of Mrs. Hatton’s case, it is necessary to consider the expert evidence about it in some detail.
(iii) The expert evidence
Dr Wood is a consultant forensic psychiatrist who has been concerned with the treatment and assessment of people with stress-related illnesses for many years. He said that the causes of stress are cumulative. Since the end of the 1993 summer term Mrs. Hatton had not been at school all that much. Running a house with two small children as a single mother is stressful in itself, and he believed that if it had not been for the assault and her son’s serious illness she would not have become ill in the April-July 1994 period.
He said that Mrs. Hatton was recognisable as an obsessional individual who was prone to anxiety and depression when under pressure. Such a person is likely to spend more and more time trying to get things right as a function of her illness rather than as a function of the amount of work she has to do. It is quite common for such people on different occasions to lay the blame on a single cause because this is more comfortable for them, although other things are causing or contributing to the pressure. Thus Mrs. Hatton attributed her illness to the work overload when speaking to a stress counsellor in August, and to her son’s illness when speaking to her head teacher in September.
Dr Baker, the claimant’s expert, is a neuropsychologist, who specialises in dealing with people with brain injuries. He felt unable to comment on the situation at the school. He felt that overwork, the assault and the boy’s illness all contributed to Mrs. Hatton’s illness at this time. He accepted that there was no objective evidence of a work overload, but he pointed to the fact that Mrs. Hatton thought subjectively that this was a stressful factor. He was certainly willing to accept that her long absence had to be attributed to more than just stress alone.
Mr. Atherton suggested that the judge might have accepted Mrs. Hatton’s evidence that she did not consider the effect of the assault to be still a problem in April 1994, and that the judge might have been influenced by what she had said to her GP in May and her stress counsellor in August about the cause of her troubles being a stressful job. In our judgment the judge ought to have considered the effect of all the evidence more carefully before making his findings in relation to this period.
5. September 1994 – July 1995
(i) The judge’s findings
The judge found that in spite of Mrs. Parry’s arrival as head of the French department, Mrs. Hatton had a similar workload as in the previous academic year. Indeed, the introduction of the national curriculum involved extra duties and responsibilities, particularly in relation to children with special educational needs. It was particularly difficult to interest these children in French.
The judge referred to a brief meeting in September 1994 between Mrs. Hatton and Mr. Wood. She attributed her lengthy absence to the illness of her son, and did not indicate to Mr. Wood that anything specific was troubling her. The judge found that she was fearful of being seen to be making unnecessary complaints because of the pressures she was under. Mr. Wood, on the other hand, appeared to the judge to be a man who perhaps did not have the ability to comprehend that depression in one of his teachers was something which required detailed and sensitive handling.
The judge found that during this year Mrs. Hatton had no specific absences due to debility or depression. He recorded, however, a number of absences: three days for influenza, five days for the same cause, 19 days due to sinusitis, two days due to a sore throat, and two other very short absences due to a virus and an upset stomach respectively. He commented, however, that even a casual look at her health record should have made it apparent to the school authorities that these absences were becoming increasingly frequent. He said it was now clear that by September 1995 Mrs. Hatton was teetering on the brink of a serious illness which was stress-induced.
(ii) Other matters not recorded by the judge
It was common ground that for the academic year 1994-5 the use of supply teachers had ceased, the use of English teachers in the French department had ceased, the ratio of teachers to pupils remained unaltered, and Mrs. Hatton’s free time had increased by one hour per fortnight. Mrs. Parry said that Mrs. Hatton never complained to her about her workload. Mrs. Hatton, for her part, said that apart from teaching modular French there was nothing different, difficult or unusual about her teaching regime for this academic year. Dr Dunham, the chartered psychologist and stress management consultant who gave evidence on her behalf, accepted that her work regime this year was entirely normal compared with other French teachers. Mr. Atherton, however, maintained that the judge had been entitled to rely on a passage in Mrs. Hatton’s witness statement in which she said that the requirement to teach National Curriculum French to special needs children caused a massive strain. In our judgment the judge ought to have taken into consideration the unchallenged evidence that there was nothing unusual about Mrs. Hatton’s workload during this academic year.
6. September – October 1995
(i) The judge’s findings
The judge described how the timetable for this year gave her two free periods in the first week and three in the second week of each two week rota. This represented a slight diminution in the number of free periods available for preparation and marking. In the first week of the rota one of these free periods was early on the Monday morning and the other towards the end of the Friday, which made these periods less useful to her. He found that she did her best to tell Mr. McNamara that she took a very dim view of this further reduction in her free periods and the alteration of their timing, and that she left him in no reasonable doubt that she was finding it increasingly difficult to manage her teaching tasks. Mr. McNamara could not alter the timetable for that year, but he promised to look into the problem for the following year which gave Mrs. Hatton, the judge found, very little, if any, solace.
He said that by October 1995 she was suffering badly from her stress-induced condition. From 16th October she was signed off work by her GP, suffering from depression and debility, and she was never able to return. She retired on grounds of ill health with effect from 31st August 1996.
(ii) Other matters not recorded by the judge
Mrs. Sansbury told the judge that when she took over Mrs. Hatton’s classes, she found the modular French teaching quite straightforward. She was given a guide, and it took her 2-3 weeks to become familiar with it. After that it was quite easy to follow. She would spend 1-2 hours each week preparing work, and 2-3 hours each week marking.
Mr. Wood said that there was nothing unusual about Mrs. Hatton’s workload or the amount of free time she was given. The school’s aim was to allow teachers 10% of their time off in a 50-period fortnight, and this was what the new timetable allowed for. In the two previous years she had been allowed slightly more than 10%. The immediate cause of Mrs. Hatton’s breakdown had come when she had attended a day organised by the Knowsley Careers Service. Mr. Wood said that it was a friendly, enjoyable day, but Mrs. Hatton was afraid that it meant that more burdens would be placed on her, and her resistance completely broke down.
7. The employers’ obligations
(i) The judge’s findings
The judge said that stress connoted a process of behavioural, emotional, mental and physical reactions caused by prolonged, increasing or new pressures which were significantly greater than a person’s coping resources. He referred to the increasing volume of pre-1994 literature which documented the effect of such stress on professional persons (such as teachers) in particular. He said that the effects of increasing pressures in the professional workplace were or ought to be as well recognised as the dangers for pedestrians of seriously defective paving stones in a busy thoroughfare. Extra demands were undoubtedly being placed on professional people, and the fact that one person might be able to absorb such a degree of stress did not in itself absolve an employer from being liable when another person performing similar work succumbed to stress.
The judge referred to the 1990 guide for managers and teachers in the schools sector to which we have referred in paragraph 8 of our judgment. The judge referred to the way in which this guide encouraged every education authority to devise its own statement on managing stress at work, and to emphasise the importance of senior management commitment to the practical implementation of its policy. He said that there were many similar publications warning of the dangers of stress-induced illness.
He was critical of the school for having done nothing before September 1995 to implement any of these recommendations. He said that by the summer of 1995, at the very latest, the school authorities ought to have realised that Mrs. Hatton was on the brink of suffering a bad psychological reaction as a consequence of the mounting pressure in her job over the previous years. They ought to have heeded the long period of absence in 1994 due to depression and debility and her other frequent illnesses, and linked these absences with her increased workload and increased responsibilities. He said that their response to these absences and to the increased workload was minimal.
The judge felt that Mr. Wood lacked any empathy or understanding of the effects of stress on persons for whom he was responsible. He was critical of the very short meeting which represented Mr. Wood’s only response to her long absence in 1994, when he had made no attempt to analyse the causes of her absences or to press delicately with her the root causes of her travails. He had recognised that something was wrong but he did not do enough to get to the bottom of what was wrong.
The judge said that Mrs. Hatton’s nervous and psychological illness, which came on in October 1995, was both foreseeable and avoidable. He said that if by 1994 there had been a system of checks and balances at the school to pick up the early warning signs of stress, it was highly probable that her breakdown could have and would have been avoided. These measures would have involved the provision at time of extra teaching staff and the provision of more free periods (or free periods at a better time in the timetable). The judge said they would have been comparatively minimal.
He added that the provision of a culture at the school of caring, a culture of sensitivity, and the setting aside of time by persons such as the head teacher, or by someone such as a deputy head teacher, to enable regular one-to-one meetings to take place with members of staff, would have generated such a degree of trust between Mrs. Hatton and her superior teachers that her problems would have been identified and redressed. The judge said that in this context he accepted the evidence of Dr Baker, who said that more attention should have been provided for Mrs. Hatton after her return to work in September 1994. If extra support had been provided for her, it was highly probable that her illness would not have occurred.
(ii) Other evidence not recorded or analysed by the judge
Mr. Wood described to the judge the support mechanisms for teachers at the school. If a member of staff had a concern, they would go to their head of department or head of faculty. If it was a pastoral matter, they would go to the head of year. At the time there was also a structure of four senior teachers, two deputy head teachers and himself as head teacher. If a member of staff wanted to come straight to him, he would listen, and people came every day. The school chaplain was also available.
The school was previously a voluntary aided school, but between 1993 and 1999 it became a grant maintained school, so that its former links with the Knowsley local education authority were severed. Mr. Wood did not think that there was any published stress policy prior to 1995, but Mrs. Hatton, as an experienced teacher, would have been aware of the support structures. He also described the external counselling services that were available to teachers.
He said that the support mechanisms would either be triggered by a teacher saying that he/she was in trouble, or there would be obvious signs that all was not well: noise from the classroom, or time off, or a teacher not looking as bright and cheerful as usual. He said that the old culture was gone, and that if a teacher had a problem at school he/she would be expected to share it.
He said that in September 1994 he had gone to see Mrs. Hatton. He was conscious that she had been off work for a considerable time, and he felt he should meet her and ask if there was anything the school could do. She told him that the problem was not in the school and that there was nothing the school could do for her. She thanked him for offering to help. He said that there were a number of courses of action he had in mind, but he had to respect her decision that she did not want to receive any help from him. She wanted to keep her problems to herself, and he felt that he should not pry.
He told the judge that the school knew all about the assault and her son’s illness and that he knew the contents of her sick notes. He said that he never knew how great her problems were because she did not wish to discuss them with him. She had had time off school for reasons he understood to be not related to the school, and with which he could not help. He had wanted to open up a dialogue with her about her problems, but she did not want to engage in such a dialogue. When she was at the school she did a good job.
He told the judge the different techniques the school used when a teacher complained of a work overload. They might move a lesson to another member of staff, or bring in an unqualified teaching assistant to help, or advise a stressed teacher to have a few days off here and there. Even though there was no written policy, the school certainly had established practices and procedures to help people who were having difficulty in the classroom.
Dr Wood, the psychiatrist, was asked for his views on the literature on which Mr. Atherton relied. He agreed that stress management was a helpful process in any work situation. He was sceptical, however, about the value of stress audits. He said that they represented a way of managing change. Staff would be canvassed about their views on what was going on at the school, in a kind of opinion poll. The difficulty about this approach was that very often this kind of audit leads to disappointment in the long run. The resources may not be there to meet the staff’s wishes, and it can be very demoralising when it all comes to nothing. The cynics tend to lead the grumbling, and people may feel worse in the long run. He added that a stress audit is a fairly dodgy process if it is not seen through to the end. The factors that prevent this are usually beyond the control of school managers.
When asked about Mr. Wood’s conduct in September 1994 Dr Wood said that managers are in a very difficult position if they try and get behind what their staff tell them. The margin between appropriate concern and prying into a teacher’s personal affairs is a very narrow one. Dr Wood provided a confidential counselling service to members of the West Yorkshire Fire Brigade, and he said that 80% of their referrals turned out to relate to domestic stress.
He said that there might have been a range of causes for Mrs. Hatton’s breakdown in October 1995. Sometimes a previous episode of depression reduces a person’s resilience and makes a further episode more likely, and Mrs. Hatton had endured two such episodes, in 1989 and 1994. Her single parent status with two young children to care for and the lack of a close confidant to share her worries was another possible factor. Another was that the majority of depressive illnesses came out of the blue without any particular cause. There was some evidence in her medical notes of anxiety about the health of a member of her family which led to anxiety about her own health in July 1995. She had had antibiotics twice in 1995 for different types of infection, and this may have undermined her. All in all, it took very little to tip her over. If she had been involved in work other than teaching it would have taken very little extra stress in her situation at work to tip the balance against her. There were pressures inherent in her job, and in September 1995 she was no longer able to tackle it with the resilience of an ordinary individual.
Dr Wood recognised that an employer had a duty of care to provide a safe workplace, and that good management was desirable in all organisations. He said that, in general, management in schools did not yet seem to be very sophisticated. When he was asked about the contents of some of the literature on stress management, he said that a great deal of what was being put to him was well up the scale towards counsels of perfection. His experience of managers in this sort of situation is that they apply common sense which serves reasonably well in many respects. The HSC advice represented an alternative school of thought, but there were costs as well as gains in stress management programmes. They were extremely time consuming and expensive, and he and others had never found any organisation which implemented all the HSC’s recommendations.
Although he did not mention him by name, it is clear that the judge was heavily influenced by the evidence given by Mr. Dunham. He is a stress management consultant who has been writing books and articles about stress in the teaching profession for over 25 years. His original witness statement was coloured by a view of the facts which was not supported by the evidence the judge received at the trial.
There were two features of Mr. Dunham’s evidence which need special mention. The first was his reliance on regulation 2 of the Management of Health and Safety at Work Regulations 1992 which obliges every employer to make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they were at work. He did not suggest that his client had a claim for damages for breach of statutory duty, but he said that a stress audit would have represented a fulfilment of that duty, so far as risks of psychological injury to school staff were concerned. He cited a 1998 article of his which suggested that such an audit would attempt to identify what levels of stress existed within the school, and whether job satisfaction and physical and mental health were better in some parts of the school than in others. He felt that the fact that Mr. Treanor had retired because of stress related ill-health indicated that all was not well.
He also emphasised the importance of leadership from the top. According to European Commission recommendations for reducing work stress, published in 1997, employers, such as the authorities at this school, needed to take action to raise awareness of the issue of work-related stress, and to acknowledge that it was not a personal problem nor a weakness but an issue that the organisation as a whole could address. People should be encouraged to come forward when problems seemed to be emerging, and stress awareness should be made part of the school’s management systems.
In his oral evidence Mr. Dunham said that the failure to assess the risks of work overload on Mrs. Hatton and her colleague in the French department following Mr. Treanor’s departure was perhaps more important than the lack of a formal stress audit. He conceded that a number of the allegations of negligence he made in the witness-box were not mentioned in his report, and he accepted that the school authorities might have more experience than he had in managing such a school. He had not been inside a comprehensive school since 1990. He had no experience of modular French.
He said that Mrs. Hatton ought to have received much closer support from September 1994 onwards. At the start of that term the school ought to have prolonged the discussion about what had happened the previous term, in order to try and assess whether the issue of stigma was a factor in the answers Mrs. Hatton gave to Mr. Wood. It was superficial for Mr. Wood to accept her answer. His reaction did not recognise the possible existence in this school of a barrier which would prevent teachers expressing their true feelings, particularly to people in authority. If he had been in Mr. Wood’s position he thought he would have said “Can we meet again”. He accepted, however, that other people with a different character might reasonably have taken a different view and accepted Mrs. Hatton’s reply at its face value, although he added that he thought they might have been misled.
He accepted that it was reasonable for the school to expect her to teach a small number of special needs children. He thought every teacher ought to be capable of coping with the change to modular teaching, although he queried the manner of its introduction. He said it was reasonable for the school to employ supply teachers when Mr. Treanor left. He accepted that if there was over-capacity in the English department, it was reasonable to use English teachers able to teach French for the lower ability range. He criticised Mrs. Hatton for not bringing her true feelings to Mr. Wood’s notice in September 1994. He accepted that her programme of work for that academic year was completely normal. Apart possibly for the sinusitis, he accepted that there were no incidents that year referable to stress at work. He said that if he had been at the school he would have needed to know how she was coping, because some people will go on working when they ought to stop. He accepted, however, that it was reasonable for the defendants to assume that she had recovered from her earlier problems.
Dr Baker accepted that when he had written his report he had known nothing about Mrs. Hatton’s son’s illness. Nor had he known that Mrs. Hatton had told Mr. Wood that her absence had been due to problems at home and not to problems at work. Even though he accepted that the assault and the son’s illness would have been factors contributing to her depressive illness in 1994, he felt that more care and attention should have been paid to her on her return. If he had been in Mr. Wood’s shoes he would have wanted to monitor the situation for six months. He accepted that as the doctor’s certificates had stopped, it was reasonable for the school to assume that she was fit to return to work. He also accepted that if the position had been monitored for six months after September 1994 no absences due to depressive ill health would have been noticed.
He knew that sinusitis could be associated with heavy smoking, and as Mrs. Hatton was a heavy smoker this would have been a reasonable explanation for that illness. He felt that when she queried the timetable in September 1995 some effort should have been made to monitor her progress, because she was then at risk of developing a further period of anxiety and depression.
8. The respondent’s notice
The main point raised in the respondent’s notice was that the judge should have found that it was not necessary for Mrs. Hatton to prove that the defendants knew or should have known that the particular requirements of her work were likely to cause her to develop stress-related psychiatric illness. This argument was founded on the contention that the risk that teachers might develop mental illness due to the stressful nature of their work was well documented in the literature available to the court. The judge should have found the defendants to have been in breach of a duty to take action to assess and reduce such a risk by providing appropriate instruction and counselling services, and by encouraging the use of such services. If this had been done, Mrs. Hatton would have used these services and avoided the illness which terminated her teaching career. It was argued that because teaching had been identified in the literature as work which was likely to cause teachers to develop stress-related illness, the case was distinguishable from Walker v Northumberland County Council.
In his submissions both to the judge and to this court Mr. Atherton relied heavily on his contention that teachers as a class were particularly vulnerable to stress. He said that the literature demonstrated that there were many teachers in need of protection which was not yet available to them. He told the judge that this was an opportunity for a judgment to be delivered which would change social attitudes. If teachers were being required to work longer and longer hours, there was a corresponding obligation on their employers to ensure that a safety net was provided (in the form of advice and training and stress strategies) to those who ran into difficulties, as they surely would.
9. Our Conclusion on liability
We consider that this judgment cannot stand. At the very least the action should be retried in order that findings of fact might be made which properly reflected the evidence and proper reasons were given why one side’s evidence should be preferred to the other side’s. There was, as our analysis has shown, overwhelming evidence which tended to show that except during the two terms following Mr. Treanor’s departure Mrs. Hatton was not given any more work than was reasonable for a French teacher of her experience to undertake. The judge did not explain why, despite all this evidence, he was disposed to find that she was subjected to an increased workload.
It is, however, possible to go one step further. For the reasons set out in paragraphs 48-50 of our main judgment, the judge approached the question of the school’s legal duty to Mrs. Hatton in the wrong way. We are satisfied that even on Mrs. Hatton’s own evidence her breakdown in health was not reasonably foreseeable by the school. The judge should also have identified the specific breach of duty which contributed to her illness and explained why anything the school could have done at the time she complained about the 1995 timetable could have made any difference.
The issue as to damages arises in this way. There is no dispute about the award of £6,000 for general damages or the award for lost earnings between 31st August 1996 and 1st December 1998. The defendants, however, challenge the way in which the judge approached the question of compensating her for loss of earnings, or earning capacity after that date.
The judge accepted Dr Baker’s evidence that she would have been well enough to seek employment as a teacher again by about June 1998. He said that given the economic problems on Merseyside and the difficulties of obtaining part-time teaching work in private schools in the area, it would be reasonable to expect her to have obtained such employment by December 1998. After that date he deducted from the net salary she would have received at the school a notional net earning capacity which gradually increased from £600 per month to £625 per month by the date of the trial. So far as the future was concerned he applied a multiplier of six to a net loss of £8,760 per annum. In the result, the award was made up as follows:
Past loss of earnings (gross of CRU)
Future loss of earnings
The defendants complained that the basis for the monthly figure of £600 was not explained. Moreover Mrs. Hatton did not seek to adduce any evidence of her earning capacity. In the absence of such evidence the judge should have made a modest lump sum award for disadvantage on the labour market.
The defendants were not arguing that she should give credit for her ill health retirement pension of £500 a month. They maintained, however, as an alternative argument, that the evidence suggested that she had a significantly greater earning capacity than that suggested by the judge. She had told the judge that she had checked with the Teachers’ Pension Agency as to what she could and could not do, so as to avoid impinging on her pension, and that she had found out that she was not allowed to teach at a school run by a local education authority if she wished to continue to receive her pension. In any event, she said that she did not think she would want to go back into a situation like the one she left before.
The defendants argued that it was not just to have no regard to her pension payment when calculating her losses, while allowing her to take into account the possibility of losing her pension as a reason for limiting her job search. She had said that she was searching for work at an annual salary of £12,000 gross (£9,575 net). This figure should have been taken as the best indicator of her residual earning capacity.
Mr. Atherton showed us how the judge had intervened during his final submissions at the trial to indicate that he was thinking of finding that Mrs. Hatton had an earning capacity which he would draw from his knowledge of the world in the absence of evidence. He said that the judge’s approach was reasonable, given Mrs. Hatton’s disadvantage in the labour market due to her age, medical history and lack of transferable skills. He showed us that even Dr Wood had considered that his client would not be able to cope with the pressures of teaching in the public sector. She had not in fact said that she had made no effort to resume public sector teaching because she might lose her pension, and Mr. Atherton said that no inference to that effect could fairly be made. Her lack of success in applying for jobs suggested that the salary figures suggested by the defendants were unrealistically high.
If we had upheld this judgment on liability, we would have awarded her a sum of £10,000 in respect of her loss of earning capacity for the period from 1st December 1998 onwards. The idea that she might have been able to go on teaching at any comprehensive school and avoided stress-related illness appears to us to be a little far-fetched, and Mrs. Hatton clearly made no attempt to find any public sector teaching, part-time or otherwise, for fear of losing her pension. We consider that there is considerable force in the defendant’s contentions, and that justice demands that we should approach the question of compensation for the period in the broad-brush way we have indicated.
B. MR. BARBER
Mr. Barber was an experienced maths teacher. He was appointed head of maths at East Bridgwater Community School in January 1984 when he was nearly 40 years old. He remained at the school until 12th November 1996 when he succumbed to a serious depressive disorder. He has not taught since, and he accepted early retirement on 31st March 1997. Judgment was entered in his favour for £101,041.59, inclusive of interest. Judge Roach held that the defendants, who were the local education authority, had demonstrated a want of care for Mr. Barber’s health. He had been exposed to a materially higher risk of injury to his mental health than a teacher working in a similar position with a similar heavy workload. The defendants appeal on liability and on the amount of the damages award.
2. The judge’s findings
The judge found that Mr. Barber was a dedicated and conscientious teacher. The school was a comprehensive school, situated in a deprived area of Bridgwater. Its roll had fallen from about 1,000 in the mid-1980s to about 450 ten years later. This drop in numbers had had a significant effect on the school budget.
It was therefore decided to restructure the staffing arrangements. In future the academic departments would be headed by “area of experience co-ordinators”. The former posts of deputy head of department were abolished or drastically reduced in number, and in smaller departments junior staff were re-assigned to other posts of responsibility. In general the academic departments were downsized and streamlined to reflect the lower number of pupils now being attracted to the school.
The judge said that as a result of these changes Mr. Barber became the maths area of experience co-ordinator in March 1995. He found that he effectively continued to be head of the maths department, but with fewer staff, and he was paid a reduced salary commensurate with his reduced position. His two former deputies were assigned to other duties. As a result of all this, the judge said that he was left heading a smaller department without any significant assistance or support from deputies.
In order that he could keep his former salary level he was allowed to apply for another area of responsibility, and in May 1995 he was appointed project manager in charge of publicity and media relations. The judge said that this was seen as an important post. The school needed successful publicity and good community ties in order to halt the decline in pupil numbers and reverse the falling annual budgets.
The subsequent history, as recounted by the judge, can be briefly summarised. He said that Mr. Barber had a full teaching timetable together with his new media job. He was working 61-70 hours a week, and the pressures took their toll. He had never suffered from psychiatric illness before, but he developed depressive symptoms during 1995, and in May 1996 his doctor signed him off work because of depression brought about by his workload. He returned three weeks later and re-assumed his responsibilities in full. Although he complained to the headmistress and her two deputies about the work pressures, nothing was done to ease them, and on 12th November 1996 he went down with his serious illness.
Mrs. Hayward was the head teacher, and the judge found that she had an autocratic and bullying leadership style. She had two deputies, Mrs. Newton and Mr. Gill. Mr. Gill was in charge of the timetable. On 31st October 1995 Mr. Gill noted that Mr. Barber had told him that the loss of his deputies had resulted in more work for him. On 20th February 1996 Mr. Gill noted that work overload was affecting both Mr. Barber and the maths department. Mr. Gill told the judge that he was urging Mr. Barber to prioritise his work. The judge said that Mr. Gill did not at that stage appreciate that Mr. Barber was finding the work now too heavy for him to cope with. He formed the impression that Mr. Gill sympathised with Mr. Barber but felt impotent about remedying the situation.
When Mr. Barber returned from his three-week sick leave in May 1996, he had an informal meeting with Mrs. Hayward. The judge found that he raised with her his concerns that he was finding things difficult and that he was not coping very well with the workload. Mrs. Hayward was not sympathetic. She said that all her staff were under stress, and she gave Mr. Barber no help in alleviating his workload. On 16th July he saw Mrs. Newton. He told her he could not cope with his workload and that the situation was becoming detrimental to his health. He said he had already had to take time off work for stress and depression, and that he could not see himself in his post in the immediate future if the work content remained the same. Mrs. Newton simply referred him to Mr. Gill without taking any steps to investigate or remedy the situation herself. Mr. Barber found Mr. Gill to be more sympathetic, but apart from telling him again to prioritise Mr. Gill took no steps to improve his situation or consider what might be done.
The judge found that Mr. Barber’s meeting with Mrs. Hayward in June represented a clear warning to the school’s senior management that he needed help to carry out his duties, even if that help would have had to be limited in time on account of budgetary constraints. He said that Mrs. Hayward’s response to his difficulties was inadequate. At the very least Mr. Barber’s position needed investigating. He said that the responses of Mrs. Newton and Mr. Gill were similarly inadequate.
In the judge’s view, a prudent employer, faced with the knowledge of a work overload dating back to the autumn of 1995, and increasing in 1996 to the extent that the employee had to take time off work, would have investigated the employee’s situation to see how his difficulties might be alleviated. Mr. Barber had told the head teacher and the two deputy heads that he was having difficulty in coping, and that his health was declining. The judge said that it must have been apparent, given his time off work for stress in May 1996, that the risk to injury to his mental health was significant, and higher than that which would have related to a teacher in a similar position with a heavy workload. The failure to investigate or provide at the least temporary assistance led to Mr. Barber’s attempting to cope, and in the result inevitably failing in the attempt.
The judge was also critical of the fact that the defendant education authority had no policy in place as to the effect of stress on teachers in Mr. Barber’s position. The HSC guide (see para 8 above) had been published in 1990, and this guide highlighted the need to be sensitive about the possibility of teaching staff suffering from stress. It also spoke of a complementary need to develop a supportive culture for teachers. The judge considered that if the senior management team at the school had been aware of the guide, and had followed its advice, the crisis that affected Mr. Barber would have been averted.
Although other reasons for Mr. Barber’s illness were canvassed in evidence, the judge rejected them as the precipitate cause or causes of the illness. He found on the balance of probabilities that it was the stress prompted by Mr. Barber’s work which was the “spur” to his depressive illness.
3. The respondent’s notice
In a respondent’s notice reference was made to certain items of evidence not mentioned by the judge. One witness, Alistair Johnston, told the judge that before the end of the summer term of 1996 Mrs. Hayward was heard to say something about Mr. Barber’s health. In the following term Mr. Gill, who was now the acting head following Mrs. Hayward’s sudden retirement, had expressed concern to him about Mr. Barber. Mrs. Newton had also given evidence to the effect that Mr. Barber’s sister had told her how concerned his family was about him. He never seemed to stop working. Mr. Glancy QC, who appeared for Mr. Barber, encouraged us to read large parts of the evidence. In response to his suggestion, we have read it all.
4. Other background evidence
The evidence given by Mr. Gill filled out the picture painted by the judge. Although the school was still maintained by the local education authority the new arrangements for local management of schools gave it control over its budget for the first time. With a cascading school roll and a reduced income, the school had to do the best it could with the resources it had, both monetary and human.
This was one of the reasons why the school had shifted to the system of co-ordinating areas of experience, which came into effect in September 1995. This change in itself made little difference to the maths department, which simply became the maths area of experience. On the creative arts and science sides, on the other hand, there were more major upheavals, in the former instance because a number of autonomous teaching units were now being co-ordinated for the first time, and in the latter because science teachers had to contend with split sites. Mr. Barber’s two former deputies did not stop teaching maths. The change which Mr. Barber resented was that their management skills were now required for pastoral roles, because it had been decided that the small size of the maths area of experience did not warrant one deputy head, let alone two. The number of staff teaching maths remained constant. It appears to us that the judge misunderstood the changes that came into effect in September (not March) 1995 when he made a finding that Mr. Barber now had fewer staff.
Mr. Gill had encouraged Mr. Barber to develop his areas of responsibility more clearly, to prioritise and to be willing to delegate when he conducted a confidential review of his performance as a teacher in 1992. He had then been relieved of that role, and it was a review conducted by Mrs. Newton in July 1996 which led to Mr. Barber being referred to him, since he was now in charge of the curriculum. When he had taken over that responsibility in September 1995 he had spoken to all the new co-ordinators, and it was at his meetings with Mr. Barber in this capacity that he made the notes which the judge quoted in his judgment.
His evidence to the judge was that he had told Mr. Barber how he ought to prioritise his work better. He should rank things in order of importance. He should go and see the person who organised the daily staffing, if he felt he was being obliged to cover for absent staff. If this did not achieve results, he would expect Mr. Barber to come back to him. He would fix the date for their next meeting at the end of each meeting. When Mr. Barber complained of work overload in February 1996, Mr. Gill encouraged him to identify the jobs he really did not need to do. He should ask himself what other people might be able to do to help him: support staff or staff from outside the school. He should identify what it was that was really causing his problems. In paragraph 42 of his second witness statement Mr. Gill said that Mr. Barber’s media link responsibilities required him simply to act as a funnel, and that if he really spent as much time on this task as he now claimed, this illustrated his lack of ability to delegate relatively simple tasks to other people.
The school was under particular pressure in the academic year 1995-6 because in addition to the structural changes and worries over the falling numbers of pupils and the prospect of an Ofsted inspection in autumn 1996, one senior member of staff had died and Mrs. Newton, one of the deputy heads, was away from school for some time for a hip replacement. Mr. Gill told the judge that he considered that every area of experience co-ordinator, and indeed the whole of the school’s senior management team, were suffering from work overload at this time. He did not consider that Mr. Barber’s job involved working any longer hours than the jobs performed by the six other co-ordinators.
5. The evidence about Mr. Barber’s health
It is against this background that Mr. Hogarth, who appeared for Somerset County Council, invited us to consider whether there was evidence that the school authorities should have reasonably foreseen that Mr. Barber was likely to suffer from stress-induced psychiatric illness. In this context he invited us to consider carefully the relevant paragraphs of Mr. Barber’s very long witness statement, and the oral evidence he gave to the judge about them. We were invited to note the difference between what Mr. Barber described as happening to him from time to time and what he told the people at the school about them.
His first description of adverse effects on his health related to the last two months of 1995. He said that he found that he was losing weight. He thought that he looked drawn and would wake up regularly in the night. It felt as if he was having out of body experiences. He believed he had completed tasks which he hadn’t completed and he became confused. He did not suggest he told anybody at the school about any of this, although members of his family became concerned during the Christmas holidays.
During the following term he said he continued to feel terrible at school, and was feeling even worse than he had done at the end of the Christmas term. He lost the sense of fun in teaching. He explored the possibility of finding another teaching post, and he also investigated what would happen if he were to retire due to ill-health, because at that time a teacher was permitted to retire and to undertake other teaching in retirement. He did not suggest he told anybody at the school about his concerns over his health that term.
He said that the pressures continued in the summer term until his GP signed him off work for three weeks in May. He said he was astounded when the doctor told him he was suffering from depression because he had never thought of himself in that way. He went to the coast for a while on his doctor’s advice. When he returned the doctor advised him to take longer off work, but he felt guilty about burdening his colleagues as a result of his absence. He therefore returned to work on 24th May 1996. In his witness statement he did not say that he spoke to anybody at the school on his return about his concerns over his health. He merely expressed surprise that nobody had inquired about it, given that his sick notes had recorded that he was suffering from stress and depression.
He spoke of an asthma attack during the summer holiday in 1996, which his family believed to be stress-related, although the expert witnesses later discounted any connection. He said he tried unsuccessfully to discuss his rising stress problems with his doctor at the end of the summer holidays, and that he continued to suffer from stress and depression in the autumn term. He went to see his doctor in October, and wrote to him on 25th October 1996, following that meeting. In this letter he described how he now felt fear and fright, an inability to settle and a sapping of energy so that any task took a vastly disproportionate amount of time to get achieved. He felt sleepy and drained in the classroom, and he knew that at school and at home things were spiralling out of control. He did not send the school a copy of this letter, or tell anyone at the school how he was feeling. Although his doctor replied on 30th October 1996 to suggest another meeting, Mr. Barber did not do anything about this suggestion until 12th November, when an incident in class led him to see his doctor that evening. He was told to stop work immediately.
In his witness statement Mr. Barber said that his complaints to senior members of staff initially related only to his workload, and that he did not discuss the effect that the workload was having on his health. It was when he returned to the school after his absence in May 1996 that he first raised the concerns about his health which the judge found established on the evidence. In his written account of his meeting with Mrs. Hayward in his witness statement he said he explained to her that his workload was getting too much and that he felt that he was not coping very well. He said that he told Mrs. Newton forcefully that he was unable to cope with his workload, and that it was becoming impossible and was detrimental to his health. He also told her that if the workload continued and his health continued to decline he could not see himself being in the post in a year’s time. In his meeting with Mr. Gill at the end of the summer term he referred to the fact that his health had recently suffered due to his excessive workload.
In his oral evidence he told the judge that between his return to school in May and the end of the summer term on 20th July, he thought he continued to suffer from weight loss and loss of sleep and what he called out of body experiences. He did not tell anybody at the school about these symptoms. Nor did he mention them to his union’s regional officer, although he was a union representative at the school. Nor did any member of his family write to the school. He said that on the three occasions when he spoke to senior members of the management team about his health during the summer term of 1996 he told them that his health was declining, that he was becoming ill, that he had been off ill, and that he was looking for some way forward to reduce the pressures on him. He did not describe his symptoms in more specific terms.
6. Liability: our conclusions
Mr. Hogarth criticised the judge for failing to link causation with breach of duty. The judge had so structured his judgment that he had concluded that Mr. Barber’s depressive illness was caused by the stress he suffered at work following the restructuring before he considered the nature of the duty the defendants owed him, the circumstances in which they were in breach of that duty, and whether it was reasonably foreseeable to them that Mr. Barber would suffer a psychiatric illness as a consequence of that breach.
It appears to us that these criticisms were well-founded. We have set out our reasons for holding that the judge’s findings on liability cannot stand in paragraphs 57 to 59 of our main judgment, and we need not repeat them here.
There is no appeal against the judge’s award of £10,000 by way of general damages for a moderately severe psychiatric illness. The judge went on to find that Mr. Barber was fit to return to work on 1st April 1998. He expressed the view that there should be no reduction for the possibility of any future psychiatric difficulty in the event that Mr. Barber had not suffered his depressive illness in 1996, and had continued to work for the defendant. The judge said that Mr. Barber had never suffered from mental illness before, and had seldom visited his GP, and that there was nothing in the experts’ reports to justify such a finding.
The judge also took the view on the balance of probability that Mr. Barber would have continued in his chosen profession until retirement age but for his illness, provided that he had received assistance to alleviate the work overload and the pressures to which he had been subjected during 1996.
The parties had agreed that a multiplier of four from the date of the trial was appropriate by way of a compromise of any dispute there might otherwise have been about Mr. Barber’s likely retirement age, and the judge computed his award of damages on this basis.
Mr. Hogarth submitted that the judge was wrong to approach his assessment of what might happen in the future by making a finding on the balance of probability that Mr. Barber would otherwise have continued working until his normal retirement age, and by extrapolating from that assessment a conclusion that this would have happened, making no discount from his award for the chance that things might not have turned out that way. He relied in this context on the judgment of Otton LJ in Doyle v Wallace  PIQR Q 146, 148-150, where reference is made to a passage in the speech of Lord Reid in Davies v Taylor  AC 207, 213, and to the judgment of Stuart-Smith LJ in Allied Maples Group Ltd v Simmons & Simmons  1 WLR 1602, 1609-1611.
Mr. Glancy invited us to approach Mr. Barber’s case as if it fell into the second of the three classes of case discussed by Stuart-Smith LJ in Allied Maples at paras 1610C-1611A. This is the type of case in which a defendant employer has negligently failed to provide ear-muffs or breathing apparatus or a safety-belt, and a question arises whether the injured employee would have used this equipment if it had been provided. In these circumstances, once it is decided on the balance of probability that the employee would have taken advantage of these facilities if they had been available, the court will find that he would have done so, and makes its further findings on this basis.
This type of case, however, which focuses on what would probably have happened in the past, is entirely different from a case where a court has to make an estimate of what may happen in the future. If there is a chance that an event may occur which would mean that an injured plaintiff would not have gone on working until retirement age in any event, then a familiar way of taking that chance into account is to reduce the multiplier used for calculating future loss. The first instance decision of Otton J in Page v Smith  PIQR Q 55, 75-76 provides a good example of this technique at work.
Mr. Glancy argued, in the alternative, that an appropriate adjustment to the multiplier had already been made when the multiplier of four was agreed. While we have no doubt that ordinary contingencies were taken into account, like the chance of death or some other kind of serious incapacitating injury or illness befalling Mr. Barber before retirement age, when the multiplier was agreed, we can see no evidence of any further discount being made for the chance to which Mr. Hogarth referred.
In our judgment the judge was wrong not to reduce the multiplier for future loss to cover the chance that if Mr. Barber had continued with a similar teaching job, his health might nevertheless have broken down in the same way. He was a man, after all, who had showed himself on the evidence unable to adopt the alleviating measures that were necessary if he was to manage his not unreasonable workload successfully. There was evidence that he had disliked the changes the school had felt obliged to introduce, and on the hypothesis (which the judge adopted) that he would have opted to soldier on as a teacher until his normal retirement age, we consider that there was a significant chance, which the judge should have taken into account when computing damages, that he would have found it altogether too much for him, to the extent that his health would have been detrimentally affected in the same way.
Given that on this hypothesis we are to imagine that he would have continued to work uninterruptedly from November 1996 onwards, we consider that a annual multiplier of one (not four) would have been more appropriate for computing future loss if proper account were taken of the chance to which we have referred. In the event we have decided to allow the defendants’ appeal on liability, so that this part of our decision will only become relevant if another court were to hold that we were wrong on the liability issue.
C. MRS. JONES
Mrs. Jones was employed as an administrative assistant at Trainwell, a local authority training centre, from August 1992. On 20 January 1995 she went off sick with anxiety and depression and never returned. She was made redundant on 31 December 1996 when Trainwell was closed. Judgment was entered in her favour for £157,541, made up of £22,500 general damages, together with interest of £1,300, past loss of earnings, medical expenses and travelling expense totalling £32,499, together with interest of £6,422, and future loss of earnings, pension and medical and prescription costs totalling £94,820. The defendants appeal against the judge’s factual findings and conclusions that they were in breach of duty towards her; there is no appeal on causation or the quantum of damage.
The claimant was born in 1953. She returned to work aged 35 in 1988. She was employed by Sandwell Metropolitan Borough Council. At first she worked for Sandwell College doing desk top publishing in the mornings and teaching typing, word processing and computing to YTS and unemployed people in the afternoons. In 1991 she had a period of absence from work. She reported to her doctor feeling low and depressed with early morning waking for two months. Her doctor prescribed amitryptilene, an antidepressant. This was acknowledged by the claimant’s psychiatric expert at trial to be a significant depressive episode. The claimant sought to deny that there was anything wrong with her at the time but the judge did not accept that. He concluded that it fitted the pattern which both the psychiatrist and psychologist had discerned from her earlier history, that she had a vulnerable personality.
In 1992 the Council decided to amalgamate its youth training activities in one establishment, Trainwell. Mrs. Jones applied for an instructor’s job there but narrowly missed it. So she then applied successfully for the job of administrative assistant there, hoping to move on to an instructor’s post in due course. She began work on 10 August 1992.
The Job Description describes her role as ‘to support the co-ordinator/manager in maintaining financial and administrative systems for the operation of Trainwell’. Working hours were 8.30 to 5.00 pm Mondays to Thursdays and 8.30 am to 1.30 pm Fridays. The grade was between 3 and 4. (This meant that her starting salary was around £9,500 increasing to around £11,100). 15 specific responsibilities were listed:
Responsible for the provision of administrative support to the Manager in the day to day operation of Trainwell.
To maintain the purchase and sales ledgers for Trainwell and to prepare monthly statements on these ledgers.
To prepare claims for grants from the Training and Enterprise Council.
To arrange payments for work placement providers.
To assist trainees in opening Building Society/Bank Accounts.
To provide work experience for trainees in established office procedures.
To complete recruitment and termination documentation for trainees.
To maintain trainee’s records, including holiday and sickness.
To check and collate trainee’s weekly time sheets.
Financial administration including:
- invoice work placement providers
- preparing sales invoices
- processing petty cash income and expenditure.
Collation of statistical information on trainees.
To attend in-service training sessions and courses as required.
To be informed of, observe and actively promote, the Equal Opportunity Policies and practises [sic] of the Council in general and Trainwell in particular.
Use of new technology as required.
Such other duties as may be appropriate to achieve the objectives of Trainwell’s Youth Training Workshop commensurate with the postholder’s salary grade, abilities and aptitudes.
The judge found that this was a highly responsible job. She had to do effectively the whole administration for Trainwell. The most important part was the collation of information and submission of monthly claims for funding to the local Training and Enterprise Council (TEC). This was vital to the continued existence of Trainwell and deadlines were strict. The rest of her work was also responsible and had to be done on time. There is no challenge to those findings.
It was also a new job. Trainwell had previously operated from two sites with a full time administrative assistant at each and a senior person responsible to them for the TEC bids and budgets. All three jobs were now being covered by one person. Mrs. Bell, who had stayed on for a few weeks to train Mrs. Jones in the work, acknowledged that the tasks were varied and the deadlines tight. The post holder would be kept busy but Mrs. Bell thought that Mrs. Jones could cope with good time management. However when Mrs. Jones saw Mr. King, her personnel officer, on 5th February 1993 she recorded him as saying that it was a ‘calculated gamble to give one person the job of two to three.’ Mr. King provided a witness statement for the proceedings, together with two sets of notes of the meeting. Mrs. Jones, whose husband had accompanied her, also provided a set of notes. Mr. King was not however called to give evidence. Hence the judge treated Mrs. Jones’ evidence of the meeting as unchallenged. There was also no dispute that the work increased in April 1993 with a change to a new computer database.
There was a dispute about how much time Mrs. Jones did in fact spend on the job. In paragraph 3 of the Particulars of Claim it was put at rarely less than 48 hours a week, and often as many as 60. In a schedule to the Further Information it had gone up to more than 81 hours a week, with additional help from her husband. This was challenged as incredible and also inconsistent with Mrs. Jones’ taking on a time consuming college course at the same time. The judge thought it impossible to say precisely what hours she worked; they probably varied from week to week; on some occasions she probably did work the sort of hours suggested; this was not happening all the time but for a sufficient amount of the time to be grossly excessive.
There was no dispute that she complained of being overworked from an early date. The response of her immediate superiors, Trainwell’s manager Mr. Papworth and his deputy Mrs. Sheldon, was unsympathetic. Early in 1993, they did a rough calculation of the time needed for the work, which showed that she only needed 32 hours a week. When she went with her husband to see Mr. King in February 1993, he noted her saying that she took work home virtually every night and at weekends and once worked until 1.30 am. Mrs. Jones noted that she had said that she was greatly offended by suggestions that she only needed to prioritise, ‘as I worked in excess of 13 hours per day and on a regular basis worked Saturdays and Sundays ....’
Mr. King also noted that she complained of constant ‘chipping away’ about her performance, telling her off for arriving four minutes late after she had worked until 1.30 am, and making ‘veiled threats’ not to renew her temporary appointment at the end of March 1993. She was also concerned that if her contract were not renewed she would not get a fair reference. She did not feel that she could complain to her line manager, Mr. Papworth, as he and his deputy were causing the stress. Mr. Papworth had made recent threats concluding that if she ever repeated the contents of their conversation he would deny that it took place. Mrs. Jones’ notes describe the same incident thus
Mr. Papworth advised me when Mrs. Sheldon left the office that he had discussed the situation with Mr. Watts [his superior] and they had decided that a re-organisation would take place and two jobs would be created one at scale one and another at scale two and was told that with my work record do you think you would get one of these jobs if you applied. This I took to be a threat to try and silence my opposition to the excessive workload within the admin dept. Mr. Papworth stated that if I told anybody about this conversation the he would deny it.
Mr. King’s conclusion was that ‘she is not objecting to her grade or the volume of work, just the “knocks” that she keeps on taking.’ She did not want him to do anything at the moment, merely to realise the problems. Mrs. Jones’ note records that Mr. King stated that he would try to get further help. She said that she would like to continue to do the job, would see if help was forthcoming and would not seek further action ‘to see if the situation got better’.
Towards the end of that year Mr. Watts did try to provide her with some extra help. Claudette Henry was asked to spend a day a week at Trainwell to help her and learn how to do the job. Most of her first day was taken up with Mrs. Jones explaining the work. When she returned the next week she was told that she was no longer to assist Mrs. Jones but was to do the typing instead.
In June 1994, Mrs. Jones asked Mrs. York, who had taken over from Mr. King as her personnel officer, for a transfer. She prepared a five page document headed ‘strictly private and confidential’ which she took with her for a discussion with Mrs. York on 27 July 1994. This listed the problems under four headings: health, excessive workload, equal opportunities and managerial disagreements. Under ‘health’, she stated:
The situation is that I am under continual pressure for which I am now suffering stress related health problems. Many of these problems were related to Dave King in a meeting some 12 months ago.
In fact, the notes of her meeting with Mr. King do not record that she made any complaint about her health, although she certainly made complaints about her workload and the other pressures she was under.
Under ‘excessive workload’, she stated
Excessive and complex workload with only myself knowing the rules, regulations and technical details of the TEC claim .... I have on many occasions worked after midnight to formulate claims also on one occasion working with the assistant manager at Trainwell until 7.30 pm on Friday evening, all day Saturday until 7.00 pm and all day Sunday until 5.00 pm Also on numerous occasions working Friday afternoons, all this without remuneration or time off in lieu.
She also complained that she had been told by Mrs. Sheldon that the additional help arranged the previous year was still allocated for that purpose but Mr. Papworth had denied it. Under ‘equal opportunities’ she complained that she thought it unlikely that she would be given an equal opportunity to apply for any forthcoming vacant positions even though she was qualified for an instructor’s post. Under ‘managerial disagreements’ she complained that it was hard to discuss these matters within Trainwell because of a ‘power struggle’ between managers. She was also frequently called upon to mediate between managers and skill instructors. There were ‘a lot of tensions and problems’ at Trainwell.
Like Mr. King, Mrs. York did not give evidence, nor was there any witness statement or (it would appear) note from her about the meeting. The outcome was that Mrs. York would speak to Mr. Watts but without mentioning Mrs. Jones by name. On 16 August Mr. Watts issued a ‘note for further action’ which provided for further administrative help for Mrs. Jones. That again does not seem to have been forthcoming. Meanwhile Mrs. Jones applied for three other jobs which she did not get.
Mrs. Jones had not by then consulted her doctor about any work-related problems. Her only visit since starting work at Trainwell was in March 1994 for abdominal problems. She did not mention problems at work, but the doctor did note ‘?psychosomatic’. She next consulted him on 16 August complaining of headaches not eased by multiple analgesics. Again she did not mention work problems. He diagnosed migraine. She went back to her doctor for further medication on 2nd September. He prescribed ibuprofen.
In September she applied for the job of skills instructor at Trainwell. She was interviewed on 2 November by Mr. Papworth, Mrs. York and Mrs. Pearson. She did not get it. She felt that the odds had been stacked against her. She found out later that Mr. Papworth had told one of the instructors that she was not going to get the job because of her accent. (She learned much later that his interview notes recorded the work ‘liar’ against her denial of being late on occasions.) She also felt at a disadvantage because she had just come back from holiday and was nervous. The judge found that the others also got that impression.
On 23 November 1994 Mrs. Jones invoked the formal grievance procedure, complaining that she had been discriminated against when she applied for this position, and also of ‘harassment encountered during my 28 months of employment at Trainwell’ which had affected her health. There was no complaint about over-work. Mr. Papworth went to see her about the grievance and said that he could understand her complaining about the excessive hours but ‘what’s this about harassment?’.
The hearing of her complaint did not take place until 17 January 1995. Mr. Papworth insisted that she took a holiday both to see her union representative to prepare for it and for the hearing itself. At the hearing it became apparent that she was complaining of long hours and over work and Mr. Watts disappeared; so the matter was adjourned. Mr. Papworth later upbraided her for talking to a sympathetic colleague about what had happened.
On 20 January 1995 Mrs. Jones went off sick and never returned. In February 1996 her treating psychiatrist diagnosed ‘an acute anxiety state 12 months ago which has developed into a generalised anxiety state with agoraphobia accompanied by mild depression and obsessive compulsive symptoms of which the anxiety symptoms seem the most troublesome’. She was made redundant from the end of 1996 when the Council closed Trainwell down.
The importance of the job she had been doing there was demonstrated by the ‘chaos’ which ensued after her departure. The documentation went downhill to such an extent that the TEC threatened to claim back amounts they had paid. Mr. Papworth’s managerial shortcomings eventually resulted in a disciplinary hearing in July and September 1996. Among the findings were a failure to ensure sufficient managerial control of the administrative and financial procedures resulting in the submission of inaccurate claims; and various management deficiencies, including a failure to respond adequately to concerns expressed by staff, resulting in ‘an atmosphere of general disquiet, no teamwork, a lack of respect and a demotivated workforce with poor morale’: an echo of what Mrs. Jones had told Mrs. York back in 1994.
2. The judge’s findings
The judge found that Mrs. Jones was being overworked and that the allegation of harassment against Mr. Papworth was made out. He found that the major causes of her breakdown were the excessive hours of work and the harassment she was subjected to. He then considered whether this was foreseeable: specifically he asked himself, ‘what would a reasonable employer have foreseen as likely to result from the factors I have described?’
The Council argued that she had taken no time off for depression; her own GP did not diagnose it in August or September 1994; she made no visits to the Occupational Health Department; she made out she was fine when colleagues asked; the Council had no knowledge of her vulnerability; and even her husband did not realise that she was heading for a breakdown.
The judge thought that the reason for that was that she was the type of person who bottled up her feelings, put a brave face on her situation, was determined to cope and not let anyone see that it was getting her down. But the question was not whether they did foresee it but whether they should have done so.
Several factors led him to conclude that they should have done so. First was the importance of the job she was doing, the ‘lynchpin on which Trainwell’s continued existence hinged’. Second, there was the stress which Mr. Papworth and to a lesser extent Mrs. Sheldon were imposing upon her. Third, she had alerted Mr. King to both of these but could not complain of the excessive hours in case her appointment was not continued. Mr. King should have realised that there was a risk of injury to her mental health if things continued as they were. But nothing was done. She then complained to Mrs. York, who could have asked her about her health problems or advised her to consult the Occupational Health Department. This was a ‘compelling cry for help’ and the second clear indication of risk to her health posed by overwork and harassment. This was followed by Mrs. Jones’ performance at the instructor interview: it should have been obvious to Mrs. York that all was not well with Mrs. Jones at that time. Finally there were the events surrounding the grievance hearing: she should not have been required to return to work after the hearing had been adjourned, when she was subjected to just the sort of unreasonable behaviour from Mr. Papworth which she feared.
It is clear from this summary that the judge was eliding the question of whether injury to her mental health was foreseeable with the question of what a reasonable employer would have done about it. He never expressly asked himself the second question.
He next discussed the medical evidence in more detail. Mr. Willmott, the psychologist instructed on behalf of Mrs. Jones, considered that there was evidence of stress and depression from at least August 1994 and that stress at work was a major contributory factor in the development of her depressive illness and anxiety. Dr Bond, the psychiatrist instructed on behalf of the council, believed that her condition developed in January 1995, and eventually agreed that there were work-related factors influencing the development of her depression. The judge concluded that the trouble started in 1994 and that if steps had been taken in July 1994, let alone in February 1993, to deal with the causes of her overwork and to stop the harassment she might well have recovered. Those steps were not taken and she did not recover: the chaotic grievance hearing, after which she was required to return to work, and the further mistreatment she then suffered were ‘the straw which broke the back of an extremely willing camel’.
3. The arguments on appeal
The appellant council takes issue with the judge’s finding that the claimant’s mental illness was foreseeable. They rely upon all the points relied upon before the trial judge, outlined at paragraph 195 above. But they also take issue with his findings of fact as to the hours worked by the claimant and the ‘harassment’ suffered from Mr. Papworth.
As to the volume of work, the judge was well aware of the discrepancies in the claimant’s case. He was also well aware of the need to treat her evidence with some caution, because he had rejected her account of the earlier episode in 1991. But he noted that the claimant’s present account was consistent with the account she said that she had given to Mr. King in February 1993. Mr. King had acknowledged that it was a gamble to expect one person to do the work of two to three. The judge also noted that no-one had done a proper time and motion study of what the job required. Mrs. Bell thought that it was manageable but she was a high flier. All the other observations were that it was too much for one person. Both Mr. King and Mrs. York had proposed extra help. Mr. Papworth himself had acknowledged that he could see what she meant about the excessive hours. Perhaps the best indication was the chaos which ensued when Mrs. Jones left.
The issue is not exactly how many hours Mrs. Jones actually worked. The judge was entitled to find that she regularly worked way beyond the 37 hours for which she was paid. She was a dedicated and ambitious employee who was anxious to show that she could do the work required even if it took more than the allotted hours. The issue is whether the demands placed upon her were reasonable in all the circumstances. It is not necessarily reasonable to expect so much of an administrative assistant whose pay and status are not those of a professional with an open-ended commitment to getting the job done. The judge was amply justified in reaching the conclusion that Mrs. Jones was over-worked.
This is allied to the question of harassment. The judge based his findings on Mr. Papworth’s general and specific shortcomings as a manager. Again, whether those collectively amount to ‘harassment’ as it is understood in other contexts is not the point. The point is whether the behaviour towards Mrs. Jones was reasonable in all the circumstances. An employee in her position should not be placed in a dilemma where she feels unable to complain about her workload because of threats, not only to her future employment, but also to her future employability. The combination of unreasonable demands and an unreasonable reaction to complaints about those demands justifies a finding of unreasonable conduct even if the epithet ‘harassment’ is not appropriate.
But that finding does not answer the questions which had to be answered in this case. The judge had first to consider the issue of foreseeability. The defendant had some powerful points to make: in particular, there was no sickness absence during the period in question; there was no complaint of injury to health to Mr. King in 1993; the complaint of injury to health in July 1994 was unspecific; had it been further investigated, it would have elicited nothing of any value because the claimant’s own doctor had not yet been consulted about, let alone detected any work-related illness; and the claimant’s own husband, who was exceptionally involved and supportive, had not anticipated it. It is also argued that the Council had no knowledge of the earlier episode in 1991; but that is less powerful, because she was also working for the Council at the time, albeit in a different post.
The judge did not clearly separate the issues of foreseeability, breach of duty and causation as he should have done. It is impermissible to reason that because a defendant has behaved unreasonably the risk of psychiatric injury should have been foreseen. Equally it is impermissible to reason that because an injury has resulted from stress at work it has resulted from an employer’s breach of duty.
However, Mr. Anderson is right to argue on behalf of Mrs. Jones that unreasonable demands are relevant to the question of foreseeability. Placing unreasonable demands upon an employee and then responding in an unreasonable way to the employee’s complaints about those demands are among the factors to be taken into account in deciding whether the employer knew or ought to have known that the pressures of the job were causing occupational stress. Mrs. York clearly did know that much. This knowledge was coupled with two express warnings from the employee that this occupational stress was indeed damaging her health. On balance, therefore, and bearing in mind that neither Mr. King nor Mrs. York gave evidence, the judge was entitled to find that actual damage to her health was foreseeable.
Once that hurdle is crossed, Mr. Anderson is also right to argue that it was easy to identify a relevant breach of duty. Senior management knew that there were complaints of overwork which were likely to have some substance but that line management was making it impossible to make an effective complaint. They actually offered help. But because of line management’s attitude that help was never effective. If psychiatric harm was the foreseeable result of doing nothing when there were obvious steps which could have been taken it is easier to conclude that there had been a breach of duty. Although the judge does not in terms address the risk/benefit question he was entitled to conclude that there was a breach of duty when it was the employer’s own unreasonable demands which were producing a foreseeable risk of harm to the employee’s health.
Unlike the others before us, this is the sort of case described by Lord Slynn in Waters v Commissioner of Police of the Metropolis  4 All ER 934, at 938c:
If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and if they do, that physical or mental harm may be caused to an individual.
The question still arises of whether that breach of duty caused the harm which was suffered. Was the judge entitled to conclude that if something had been done to lighten the claimant’s workload and acknowledge the validity of her complaints her eventual breakdown could have been avoided? The underlying vulnerability would still have been there, as would the claimant’s basic ambition to become an instructor rather than an administrator. But the judge gave sound reasons for preferring the view of the expert psychologist instructed on behalf of the claimant to that of the expert instructed for the defence, who had not been supplied with all the relevant material.
It must be acknowledged that although the judge gave a long and detailed judgment, it did not address each of the issues in turn in a systematic manner. This was not an easy case and would have benefited from such an approach. Nevertheless, there was evidence before the judge which entitled him to reach the factual conclusions he did, and from those to conclude that the indications of risk to mental health were strong enough for a reasonable employer to think that he should do something about it, not least because senior management did think that there was something they should do. That something was to cease placing unreasonable demands upon the claimant. There was also expert evidence from which the judge was entitled to conclude that it was the failure to take those steps which caused, or at least materially contributed to, the claimant’s mental illness. There is no challenge to his assessment of the damages resulting. It was for these reasons, which are set out more succinctly in paragraphs 66 and 67 of our main judgment, that we are dismissing the employers’ appeal in Mrs. Jones’s case.
D. MR. BISHOP
Mr. Bishop left school at the age of 15 without any formal qualifications. He worked at an abattoir for ten years, and he then worked for the defendant company between April 1979 and February 1997. In the early hours of the morning of 25th February 1997 he suffered a mental breakdown, associated with a suicide attempt (which was interpreted as a cry for help). He has not worked since then. He was awarded £7,000 by way of general damages because the defendants had failed to take appropriate steps to protect him from the real risk of an impending mental breakdown. The defendants appeal against the judge’s ruling on liability.
Mr. Bishop’s difficulties surfaced in the following way. In 1992 an American company had taken over the defendant company, and in 1995-6 they introduced changes in their employees’ work patterns, designed to achieve more modern and efficient working methods. Employees were now required to undertake a wider range of jobs, some of which involved a greater mental input than had previously been the case. There is a helpful list of the jobs Mr. Bishop was now required to do at the beginning of his particulars of claim.
The judge said that these changes had been agreed with the trade unions and that on the whole the workmen preferred the changes. Although the shifts were longer, and the series of shifts were longer, there were longer breaks between shifts. Mr. Wilson, who gave evidence at the trial, did the same work as Mr. Bishop on the other shift and he coped with the changes. Mr. Bishop did not.
Mr. Bishop was now in his mid-40s. He had coped with his previous more limited tasks, but the new tasks got him down. He was meticulous by nature, perhaps a bit set in the jobs he had done, and rather slow. He could not cope with the new, more efficient ways of doing things, and he worried that he could not do his job properly.
It was common ground that he told his manager, Mr. Fairhurst, about the stresses he felt. He told the judge that he spoke to him about 12 times in the three months which led up to the collapse. Mr. Fairhurst accepted that Mr. Bishop had discussed his problems with him on 3-6 occasions. He also mentioned his difficulties to Mr. Wilson when they changed shifts. Mr. Wilson was sufficiently concerned on one occasion that he went and told Mr. Fairhurst that there was something wrong with Mr. Bishop, and that he was not coping. He also told Mr. Fairhurst about Mr. Bishop’s wish for a change in his job, because he was not happy with the many duties now being imposed on him. Mr. Wilson also mentioned this less formally to Mr. Turner, the foreman.
Mr. Bishop was away from work between 24th January and 16th February 1997. For some of this time he would have been absent anyway. For the rest of the time he was sick, and he submitted two sick notes from his GP which referred to neurosthenia. The judge said that this history should have set alarm bells ringing. The defendants ought to have investigated the situation immediately. Even if there was no alternative work available for Mr. Bishop they ought to have taken him off his job immediately. They knew that there was no alternative source for his stress other than his work, and that he had no personal problems. They were not allowed to say that because they had nothing else for him to do, he had to continue at the job which was causing him injury and was likely to cause him even more serious injury if he continued to do it.
This was in effect what they did, the judge said, and within a short time Mr. Bishop suffered a complete mental breakdown due to the stress of his job. This, the judge held, was entirely foreseeable. The defendants could have given him counselling, or training, or a period of rest. If in the end they had discovered that he could not do the work, they should either have found him a job which he could do, or terminated his employment. This would have been preferable and more reasonable than to adopt a course which would give him a mental breakdown.
The judge accepted that the defendants had no duty to provide him with an alternative job. This did not mean that they could simply insist on his continuing to do a job when it was reasonably foreseeable that he would suffer injury to his health if he did continue with it.
The judge was critical of the fact that Mr. Fairhurst had received no training about possible problems concerned with stress at work and that he was not aware of the possible causes of such stress. He did not think that this was a topic which had ever been raised at management level. Mr. Fairhurst had never seen the HSE’s guidance on Stress at Work (see paragraph 9 above), which had been published a year or two before Mr. Bishop’s final breakdown. The judge said that in the 1990s properly responsible companies ought to have been aware of the factors leading to cause stress.
In these circumstances he held that the defendants should have taken appropriate steps to avoid the consequences of sending Mr. Bishop back to a job where there was a real risk of his suffering a mental breakdown. The only reason why they did not take such steps was that they did not realise the risk. He therefore found the defendants liable to Mr. Bishop for the breakdown and its results. He then made the award of general damages which is not under challenge. He adjourned the trial of other issues relating to damages because of the existence of an unresolved dispute as to whether Mr. Bishop’s supervening back condition would in any event have prevented him from continuing to work for the defendants or to do any other work which involved lifting.
The judge did not mention the fact that Mr. Bishop’s doctor had told him on 1st November 1996 that he ought to have a career change. He had told the doctor that he wanted to do his job and master it, and he never told the defendants about his doctor’s advice. Mr. Bishop said that Mr. Fairhurst had explained to him that the sheltered kind of job he wished to do was simply not available.
For his part, Mr. Fairhurst told the judge that although Mr. Bishop had asked for a move, there was nothing to indicate that his performance was suffering. The jobs were being done, the quality assurance procedures were being followed and the paperwork was being completed. Although he had not seen the HSE publication “Stress at Work” he said that as somebody responsible for managing people he knew that stress might cause anxiety and depression. He agreed that harmful levels of stress were most likely to occur where pressures piled up on top of each other, but he had not previously thought that it was more likely that people might feel trapped, unable to exert control over the demands placed on them if they were at more junior levels in a business. He accepted as a matter of common sense that it was best so far as possible to match a job with the abilities and motivations of the person employed to do the job.
The most striking feature of Mr. Bishop’s case was that his employers had no notice that he was likely to suffer a psychiatric illness if he continued in his job. Mr. Bishop had concealed from his employers the advice that his doctor had given him the previous November, and two sick-notes referring to neurosthenia are a shallow foundation for the finding the judge made with the benefit of hindsight. Mr. Bishop knew that his employers had no other work for him, and that his doctor had advised him to change jobs. He chose to go back to work, as he was entitled to do, but there is in our judgment no evidential basis for a finding that the breakdown in his health was reasonably foreseeable, and in any event there was nothing the employers could have done to continue Mr. Bishop’s employment, if he could not cope with it, because work of the kind he wanted to do was not now available.
We have set out in paragraphs 72 and 73 of our main judgment our reasons for allowing this appeal.
Wilsons & Clyde Coal Co Ltd v English  AC 57; Page v Smith  AC 155; Alcock v Chief Constable of South Yorkshire Police  1 AC 310; Frost v Chief Constable of South Yorkshire Police  2 AC 455; Petch v Commissioners of Customs & Excise  ICR 789, CA; Walker v Northumberland County Council  1 All ER 737; Garrett v London Borough of Camden  EWCA Civ 395; Page v Smith  AC 155; Cook v Swinfen  1 WLR 457, CA; McLoughlin v Grovers  EWCA Civ 1743; Paris v Stepney Borough Council  AC 367; McIntyre v Filtrona Ltd, Court of Appeal, 12 March 1996; Stokes v Guest, Keen Nettlefold (Nuts & Bolts) Ltd  1 WLR 1776; Withers v Perry Chain Co Ltd  1 WLR 1314; Wilsher v Essex Area Health Authority  AC 1074; Bonnington Castings v Wardlaw  AC 613; Thompson v Smiths Ship Repairers (North Shields) Ltd  QB 405; Holtby v Brigham & Cowan (Hull) Ltd  PIQR Q293; Rahman v Arearose Ltd  QB 351; McGhee v National Coal Board  1 WLR 1, HL; Calascione v Dixon (1993) 19 BMLR 97; Vernon v Bosley (No 1)  1 All ER 577; Waters v Commissioner of Police of the Metropolis  4 All ER 934; Doyle v Wallace  PIQR Q 146; Davies v Taylor  AC 207; Allied Maples Group Ltd v Simmons & Simmons  1 WLR 1602
Authors and other references
NJ Mullany, “Fear for the Future: Liability for Infliction of Psychiatric Disorder” in NJ Mullany (ed), Torts in the Nineties (1997)
The Law Commission, Consultation Paper on Liability for Psychiatric Illness (LCCP No 137, 1995)
American Diagnostic and Statistical Manual of Mental Disorder, the DSM-IV (1994)
World Health Organisation’s ICD-10 Classification of Mental and Behavioural Disorders (1992)
The Law Commission, Report on Liability for Psychiatric Illness (Law Com No 249, 1998)
Health Education Authority, Report on Stress in the public sector – Nurses, police, social workers & teachers (1988)
Education Service Advisory Committee of the Health and Safety Commission, Managing occupational stress: a guide for managers & teachers in the schools sector (1990)
Health and Safety Executive, Stress at work (1995)
Prosser & Keeton on Torts, 5th ed (1984)
Clerk & Lindsell on Torts, 18th edition (2000)
Peter Atherton (instructed by Silverbeck Rymer for the Claimant/Respondent)
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