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Hartman v South Essex Mental Health Community Care NHS Trust and 5 Other Cases, Court of Appeal, 20 January 2005

28 January 2005
The issues

Stress At Work – Hatton V Sutherland – Barber V Somerset County Council – Further Guidance As To The Application Of Hatton V Sutherland In The Light Of Barber V Somerset County Council – Whether Oscar Wilde Authority In English Law

The facts

Six appeals were heard involving claims for damages for psychiatric injury arising out of stress at work. Four were the Defendant’s appeals and two were the Claimant’s appeals.

In Hartman v South East Essex Mental Health Community Care NHS Trust the Defendants appealed from the decision of the Judge in the Southend County Court awarding the Claimant £51,620.30.

The Claimant had a history of sociological problems and was aged 60 at the time of the Trial in 2002. She had had an unhappy childhood and had been sexually abused by her stepfather. She had a number of other unfortunate events in her life including domestic violence and the death of a 17 year old son from meningitis. She had a history of prescriptions of anti-depressants and regular consultation with her GP for depression, anxiety etc.

She worked at Orchard View Children’s Home as a Nursing Auxiliary. In August 1996 there was a tragedy at the home when one of the children was run over and killed. The Claimant was present at the aftermath and accompanied the child to hospital and dealt with the child’s family. After the accident staff were given two weeks compassionate leave and offered counselling. The Claimant did not take up the offer.

In 1996 and early 1997 there were changes to recruitment policy and working practices which put extra pressure on staff and significantly increased the Claimant’s working hours. Concerns had been expressed about the lack of staff at the home by the Acting Home Manager. These concerns had been passed to the Director of Primary Care. In March 1998 the Claimant developed bronchitis and was put on sick leave. She then developed a number of psychological symptoms including panic attack and sleep disturbance. In early 1999 the occupational health doctor supported her application for ill health retirement. His diagnosis was depression secondary to the accident at work, anxiety and social isolation. Her employment was terminated on 20th May 1999.

The psychiatric evidence was broadly agreed to the effect that she suffered from a mood disorder of moderate severity characterised by depression and anxiety. The Judge accepted the view of the Claimant’s psychiatrist but for the accident and pressures at work her condition would not have become chronic or lasted so long.

The Judge found that caring for children with serious learning difficulties was a high risk occupation imposing a higher than normal standard of alertness on employees in respect of the risk that employees would sustain psychiatric injury. He found that the trust should have been alerted to the fact that action needed to be taken to protect the Claimant from risk of psychiatric injury namely knowledge from Mrs Hartman’s original application for work at Orchard View, the aftermath of the 1996 accident and complaints about overwork. The Judge also found that 4 people had left through stress at the home through one reason or another and went on to say, along with Lady Bracknell, that to lose one member of staff to stress was perhaps misfortune but to lose three or four or possibly four was carelessness”.

In Best v Staffordshire University the University appealed against the decision of the Recorder at the Telford County Court giving judgment on liability for the Claimant, Mr Best. The Claimant was employed in 1986 as a Senior Lecturer by the University at its school of computing. In February 1998 he broke down at work. He was prescribed anti-depressants and off work for 6 months but returned between August 1998 and January 1999. Thereafter apart from a few days he did not work for the University again but retired on the grounds of ill health in September 2000 aged 46. His claim was based on the University’s alleged negligence prior to the breakdown in February 1988. He alleged that he had to work hours late into the night and at weekends and that after he complained of his work load the University’s only response was to provide him with a computer for use at his home. He was provided with an administrative assistance but that help was diverted elsewhere. The essence of his case was that it should have been plain to the University from his medical records and the nature of his written complaints that he was a person who was vulnerable to anxiety and stress and relied on a specific complaint of illness made by Mr Best to a colleague, Mr Lee and passed on by him to Mr Lee’s Line Manager, Dr Topping and the management team.

The Court found that the Claimant was placed under an accumulation of real and increasing unreasonable work pressures exceeding what he had been employed to do and what could be expected of him and that the University knew of this excessive burden and the stress on its staff generally. The breakdown was therefore reasonably foreseeable and the University should have provided more administrative support. The Recorder found that the stress suffered by the Claimant contributed materially to his breakdown preferring the Claimant’s psychiatrist to that of the Defendants namely preferring the evidence that the Claimant had a pre-existing psychiatric vulnerability rather than a pre-existing psychiatric disorder. Contribution was agreed by the parties that the stress suffered by Mr Best was 30% on the basis of the Claimant’s psychiatric evidence and 5% on the basis of the Defendants.

In Wheeldon v HSBC Bank Limited the Defendant bank appealed from the decision of the Judge in the Chesterfield County Court awarding the Claimant damages of £18,861.71. The Claimant was employed as a Senior Customer Services Representative. In March 1994 she moved from one branch in Derby to a smaller branch in Alverston. She was in charge of the branch but ran it under a job sharing scheme with Mrs Cope, each working for two days one week and three days the next.

She averaged 17.5 hours per week. The sub branch was a busy branch carrying on the day to day functions of the bank but without the overall administrative and managerial responsibilities of a larger branch. The Claimant used to spend about 1 hour on bank matters at home each weekend. Over time was almost invariably required because there was not time during the hours to do all the work. Pressure of work was exacerbated in 1997 with the installation of new computers and in 1998 by the closure of another branch. She complained to her Line Manager from time to time putting those complaints in writing in November 1997.

In 1999 she had a panic attack at work and went to see her GP. She told him she had suffered from stress for up to two years and had difficulty sleeping and was not eating. She was signed off for three weeks due to stress. She returned in October 1999 and broke down with problems of sleep and headaches. She was prescribed anti-depressants. In January 2000 she returned to her GP complaining of lower back pain.

The Claimant’s husband telephoned her Line Manager, Mr Whighan to make her aware of the Claimant’s problems and the Claimant discussed matters with her and was offered a posting at her old branch. The Claimant after a short period at the old branch returned to Alverston. The bank referred the Claimant to the occupational health department. The GP told the Occupational Health Department that he thought the Claimant was depressed and that her symptoms would improve if she took antidepressant therapy and that the depression had probably been triggered by her situation at work. He recommended reduction in hours if it was accompanied by a reduction of duties. She was seen by the Occupational Health Department in January 2000 and the report concluded that she was suffering from stress due to over work and understaffing. Neither her hours nor her duties changed. She was off work from May to July 2000 for an operation on her foot. Her return coincided with an experienced helper at the bank and the presence of workmen installing a new till. In August she started to suffer panic attacks again. The Occupational Health Department had said there would be a further assessment but when she telephoned them she was told her file had been closed.

The Judge found that the bank was in breach of its duty of care when Mr Whighan failed to discuss what could be done with the Claimant but instead closed his file and that the stress was attributable to the stress of her work.

Green v Grimsby & Scunthorpe Newpapers Limited

Mr Green had worked for the Defendant newspaper since he had been 17 years old and 40 years later left work suffering from a major depressive episode of moderate intensity. His claim was dismissed at the Great Grimsby County Court by the Recorder.

He worked as a Chief Sub Editor in the features department. In September 1988 his department took on the sub editing of a monthly magazine, Bygones. At the end of that year the employer introduced a new computer system. The Claimant’s Line Manager was responsible for introducing this system and his absence increased the Claimant’s workload. By February 1999 the Claimant found himself under great pressure and found it impossible to do all his work in his available time.

He complained to his Line Manager and believed that these complaints were passed on to the Editor. He also complained directly to the Editor who responded by deferring the deadlines for publications of Bygones which were not important. He also to some extent arranged for the removal of work from the features department and the drafting in of other staff to help from time to time. In May 1999 in the words of a witness, Mrs Johnston who was a colleague, “threw a little bit of a wobbly” at someone in the office. Mrs Johnston telephoned the Claimant’s wife suggesting he see a doctor. Another colleague who saw a good deal of the Claimant during the week noticed nothing wrong with his health and in discussions with him had never heard the Claimant complain that workplace stress was making him ill.

In June the Claimant sent a long memo to Mr Moore complaining of his inability to produce the magazine to a scheduled date and made various suggestions as to how the problem could be solved. Mr Moore made enquiries and was told that the Claimant worked fewer hours than anyone else and often took a half hour coffee break on arrival in the office and very rarely if ever, worked late.

There was a general reaction on the part of the senior employees who Mr Moore consulted of surprise at his complaints of overwork. When Mr Moore discussed the matter with the Claimant and raised the issue of the coffee break the Claimant walked out of the meeting and the next day went to his doctor who diagnosed depression. The Claimant was off work until he retired on ill health grounds in February 2001.

The evidence at Trial was that the Claimant was a perfectionist who was meticulous but slow. His work was of high quality but he was described as something of a grumbler. The psychiatrist agreed that the Claimant had an obsessional personality concerned with detail rather than the big picture, found it difficult to cope with deadlines and adapt to change. The Recorder found that the Claimant was not in fact over worked and that he was under less stress than others. The general view of his colleagues was that he was looking forward to retirement more than most. No one saw any obvious signs of deterioration in his psychological wellbeing. On this basis the Recorder found the employer could not reasonably have been expected to tell that the Claimant’s inability to cope was more than occupational stress. His claim was dismissed.

Moore v Welwyn Components Limited

Moore was employed as an Accountant for 25 years by the Defendant. In December 1997 he was suffering from a depressive illness which led him to retire in August 1998 at the age of 55. The Judge sitting in the High Court in Newcastle found the Defendant employer liable for the illness and his financial consequences.

Appeal was refused against the Judge’s finding of liability but the Defendant was granted permission to argue that the Judge should have apportioned or reduced the damages to reflect the fact that there were non-negligent causes of the illness and/or to take account of the fact that Mr Moore would have succumbed to a stress related disorder in any event. The Judge found that the illness which resulted in the Claimant’s retirement was caused by the fact that he had been subjected to sustained bullying from the end of 1995 to August 1998 by the employer’s Finance Director, Mr Watson. Mr Watson’s conduct was described by the Judge as “appalling”.

Mr Moore had a history of psychiatric illness. In 1975 he had suffered a severe depressive illness necessitating in patient treatment. In 1988 he was absent from work with a further episode of depressive illness and in 1990 and 1994 there were further absences. The agreed psychiatric evidence was that Mr Moore was a vulnerable individual who was biologically predisposed to suffer from depressive illness. It was agreed also that depressive illness which had led to his retirement was likely to have had more than one causative factor; that one factor was the Claimant’s constitutional predisposing to depression but it was unlikely that this alone would have brought about an illness without some external stress.

He found that earlier incidences of bullying in 1996 and 1997 had sensitised Mr Moore so as to make him more likely to succumb to his illness and at the end of 1997 Mr Watson had been made aware of the effects which his conduct was having on Mr Moore. The Judge had been invited to apportion damages on the basis that the illness was attributable to non negligent stressors as well but declined to do so.

Melville v The Home Office

Mr Melville was employed as a Healthcare Officer at HM Prison in Exeter. His duties included recovering the bodies of prisoners who had committed suicide. Between 1981 and 1998 he had attended 8 such suicides. On the last occasion he had helped to cut down the body and remove a ligature and attempt revival. Subsequently he suffered from nightmares and flashbacks and developed a stress related illness. He retired on the grounds of ill health in 1999 at the age of 49. The matter was heard by the Judge at Exeter County Court who tried the issue of foreseeability as a preliminary issue. That issue was decided in favour of the Claimant. The Defendant appealed to the High Court and the High Court Judge dismissed the appeal. The Defendant appealed further to the Court of Appeal.

It was common ground that before he stopped work the Claimant gave no indication that he was developing a stress related illness. The Home Office documentation on the other hand showed that it recognised that persons who were called on to deal with certain traumatic incidents in prisons such as suicides might sustain injury to their health and that those persons should therefore receive support from the prison care team following such an incident. It was agreed that the Home Office had devised adequate procedures for dealing with the risk of injury to health. However, it was the Claimant’s case that the implementation of those procedures at HM Prison, Exeter was lamentable. Issues of breach and the issue of causation had still to be tried.

The decision

Generally:-

1. Liability for psychiatric injury caused by stress at work was in general no different in principle from liability for physical injury.

2. It was the foreseeable injury flowing from the employer’s breach of duty that gave rise to the liability. It did not follow that because a Claimant suffered stress at work and that the employer was in someway in breach of duty in allowing that to occur that the Claimant was able to establish a claim in negligence. The risk of breakdown ought to be one which the Claimant’s employers ought reasonably to have foreseen.

3. Some of the cases under appeal had been fought over many days at great expense and the time and cost were disproportionate to the real issues in the case and the true values of the claim. Great care needed to be taken when preparing cases for Trial to isolate the real issues between the parties and to ensure that expenditure on costs were proportionate to what was truly at stake.

4. The Court of Appeal had given guidance in Hatton. One of those cases, Barber v Somerset County Council had gone to the House of Lords. The point on which the appeal to the House of Lords turned was whether the Court of Appeal had been entitled to take a different view from the Judge as to whether the employer was in breach of its duty of care to Mr Barber. The House overturned the Court of Appeal’s decision by a majority of 4-1. The dissenting Judge Lord Scott thought that the Trial Judge had set the standard of care at too high a level. Lord Walker who had given the leading speech thought the case was “fairly close to the borderline”.

In Hatton detailed guidance had been given by Lady Justice Hale in terms of 16 propositions. Lord Scott in Barber affirmed that those propositions accurately expressed the law that ought to be applied. Whilst the 16 propositions were not expressly affirmed in any of the other speeches none appeared to have been in issue. Lord Walker had referred to paragraph 29 of the Judgment of Lady Justice Hale which led to her summary that an employer was usually entitled to assume that the employee could withstand the normal pressures of the job unless the employer knew of some particular problem or vulnerability. He commented that though this was useful guidance, it had to be read as guidance and had nothing like statutory force and preferred the well known statement of Mr Justice Swanwick in Stokes v Guest.

Lord Scott on the other hand had preferred Lady Justice Hale’s statement of general principal to that of Mr Justice Swanwick pointing out that the latter did not have in mind the problems of psychiatric illnesses caused by stress. The Court of Appeal commented that it could see the force of Lord Scott’s comments but doubted that there was any inconsistency between what Mr Justice Swanwick and Lady Justice Hale had been saying. Lady Justice Hale had simply focused an established principal on a new problem and indeed had referred to Mr Justice Swanwick’s summary three paragraphs later in her own Judgment. Lord Walker had not expressed disagreement with anything Lady Justice Hale had said but simply sounded words of caution that no two cases were the same. Whilst what had been said in Hatton was not intended to cover all the infinitely variable facts likely to arise in stress and work cases, none of the cases decided since Hatton including Barber had detracted from the utility of the guidance Lady Justice Hale had given. Those principals were still good in law but needed to be applied with care to the particular facts under consideration.

Hartman v S Essex

The Judge had concluded that there was some basis for concluding that caring for children with serious learning difficulties was a high risk occupation imposing a higher than normal standard of alertness on employees in respect of a risk that employees would sustain psychiatric injury. The Court of Appeal disagreed.

The Judge had identified three matters which should have alerted the Trust in 1988 to the fact that action needed to be taken to protect the Claimant. These included her original application for work, the aftermath of the 1996 accident and the information given to the occupational health doctor. It was not right to attribute to the Trust in any capacity of employers, knowledge of confidential medical information disclosed by the Claimant to the OHD. The OHD had concluded that the Claimant was fit for permanent employment.

No complaint had been made in the case of that conclusion. Whilst there may be circumstances in which an occupational health department’s duty of care to an employee requires the department to seek an employee’s consent to the disclosure to the employer of information that the employer needs to know if proper steps are to be taken for the welfare of the employee no such case was advanced for Mrs Hartman and there was no basis on which the Judge could properly conclude that the Trust was fixed with knowledge of the confidential information disclosed by Mrs Hartman to the OHD.

The information given to the OHD was “old history” between 1989 and 1998 nothing occurred which should have indicated to the Trust that Mrs Hartman was psychologically vulnerable.

As for the accident, it had occurred 18 months before the Claimant’s and there was nothing in that period to suggest that she was vulnerable. The complaints made of overwork related to the demands on the qualified staff whereas the Claimant was unqualified. The Judge had said he could not ignore the likely knock on consequence of such a debilitating effect on staff generally. This was not a satisfactory basis for concluding that there was a foreseeable risk of psychiatric injury to the Claimant. In the absence of signs that the Claimant was particularly vulnerable there was nothing to indicate that she could not cope with the work she was required to perform. The Judge’s flippant comments with regard to Lady Bracknell’s words were inappropriate. The words of Oscar Wilde were no authority on any aspect of the law on liability for injury caused by stress. The Judge had failed to consider whether the fact that psychiatric injury had been suffered by other staff members was evidence that such injury was reasonably foreseeable in the Claimant’s case. Had he done so, he would have found that it was not. The employer’s appeal would be allowed. As to quantum, although it was not strictly relevant given the success of the appeal, the Judge should have allowed a discount of 25% to the Claimant’s claim for loss of earnings on the basis of her pre-existing vulnerability, the Judge having made such a discount in respect of her general damages.

Best v Staffordshire University

The Judge had found that the Claimant’s breakdown was reasonably foreseeable. The Recorder however had misunderstood the facts. Appraisals in 1996 and 1997 were in the Trial Bundles and showed no hint of any impending crisis which matter the recorder had overlooked in his Judgment. The Recorder had failed to appreciate that the Claimant had applied for promotion only a year before his breakdown believing that that application had been made 5 years before it had in fact been. He had therefore wrongly dismissed the importance of the application. The Recorder had failed to mention anywhere in his Judgment the fact that the experts agreed that there was no record in the GP notes of a depressive episode or anything which might have caused concern about the Claimant’s mental health before February 1988. His finding that the breakdown was reasonably foreseeable was not sustainable on the evidence. The Recorder had stated the correct test but failed to apply it properly to the facts of the case.

The University had made available a counselling service. The Claimant was aware of it but did not use the service. The University had argued that if the Claimant did not recognise he needed counselling how his employer could be in a better position. The Recorder did not deal with this argument. On the facts that availability of a counselling service was not fatal to the Claimant’s case but was a factor for which the Recorder should have given credit when considering whether the University was in breach of its duty of care.

In Hatton Lady Justice Hale had emphasised that it was necessary for the Court to identify the steps that he employer both could and should have taken and that the employer could only reasonably be expected to take steps likely to do some good. This was a matter where the Courts might require expert evidence. In this case there was no expert evidence but more administrative help would have made any difference to the course of the breakdown the Claimant suffered. The Recorder had simply made a finding that the University should have provided more administrative support. At the very least the Recorder should have tailored to the Claimant’s circumstances the administrative assistance which he considered was required taking into account that much of the work that the Claimant did was agreed to be non delegable. The employer’s appeal would be allowed.

Wheeldon v HSBC Limited

The Judge had been entitled to conclude that Mr Wigham’s failure to take action to reduce the stress on the Claimant had the effect that her depression “continued and flourished”. The breach of duty occurred because Mr Wigham had failed to sit down and discuss with the Claimant the various options available to her such as training her for a different post or taking her away from Alvaston until she was better able to cope with the stresses. The Judge was entitled on the evidence to find this breach of duty caused the Claimant to suffer an identifiable psychiatric injury.

Whilst it was only in exceptional circumstances that someone working for 2 or 3 days per week for limited hours would make good a claim for injury caused by stress at work, it was perfectly clear that the Judge here was satisfied of a link between the bank’s breach of duty and the Claimant’s psychiatric injury. The bank had failed to act on its own medical advice. The employer’s appeal against liability would be dismissed.

Green v Grimsby & Scunthorpe Newspapers Limited

It had been submitted on behalf of the Claimant that the Recorder had applied the wrong test and should have applied the more general test favoured by Lord Walker in Barber v Somerset County Council. There was however nothing said in Barber which was intended to alter the practical guidance given in Hatton. The Recorder had quoted the relevant parts of the Hatton guidance and there was nothing to indicate that she did not apply it properly. The claim came nowhere near meeting the requirements identified in Hatton and the Recorder had reached the right decision. The Claimant’s appeal was dismissed.

Moore v Welwyn Components Limited

The Judge had been invited to apportion damages on the basis that the Claimant’s illness was attributable to non negligent stresses as well as negligent ones. The Judge had simply said that this was not a suitable case for apportionment but had given no reasons. When assessing general damages he had taken account of the fact that the Claimant had a vulnerable personality but when awarding damages for past and future loss of earnings, had taken no account of this factor. The same principals that applied to general damages (as identified in proposition 15 of Lady Justice Hale’s 16 propositions in Hatton) applied also to a claim for loss of earnings. If there had been a reasonable prospect that the Claimant’s vulnerable mental state might as a result of non negligent stressors have caused the Claimant to lose earnings in the remaining years of his employment an appropriate reduction should have been made. Here however this was not the case. The employer had not established by clear medical evidence that there were other potential causes of the Claimant’s loss of earnings. The only non negligent stressors identified related to the Claimant’s work and were closely connected to the allegations of bullying which had also sensitised the Claimant to their effect. For these reasons the Judge had been justified in saying that this was not a case for apportionment. The employer’s appeal would be dismissed.

Melville v The Home Office

Both Judges had come to the conclusion that it was reasonably foreseeable that the Claimant might suffer psychiatric damage.

Here on the evidence before the Court the employer plainly foresaw that employees who are exposed to particular, traumatic incidents might suffer psychiatric injury. It was illogical to argue that when an employer had foreseen a risk of psychiatric injury to employees exposed to certain traumatic incidents, that such injury was not foreseeable if the employee did not show impending signs of such injury before the events took place.

The Home Office had failed to implement its own system – had set its own threshold – and had only itself to blame.

Generally however the mere fact that an employer offered an occupational health service should not lead to the conclusion that the employer had foreseen risk of psychiatric injury due to stress at work to any individual or class of an employee. In a case where a conscientious employer had assessed that there was a potential risk of psychiatric injury it would still be generally open to him to argue that it was a mere possibility or so small that it was reasonable for him to neglect it nor did it follow that if one employer had foreseen a particular risk all others in the same field should have done so as well. If there was an issue as to whether a particular employer should have done so it would fall to be decided in accordance with the statement of Mr Justice Swanwick in Stokes v Guest. The Home Office appeal would be dismissed.

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