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Heyward v Plymouth Hospital NHS Trust, Court of Appeal, 20 June 2005

21 June 2006
The issues

Personal injury/stress at work – expert evidence – discretion of District Judge to limit the number of experts as part of his Case Management function

The facts

The Claimant had been employed by the Defendant Trust as a purchasing officer. In the summer of 1998 he had taken sick leave as a consequence of stress/anxiety due to his belief that colleagues at work were committing thefts from the hospital stores. The Claimant “blew the whistle” on his colleagues. After his return to work an investigation was instituted which led to one of the Claimant’s colleagues being formally disciplined. The Claimant alleged that after the disciplinary procedure had been completed, the colleague in question began to intimidate him within the work place. The Claimant further alleged that his work-load drastically increased. The Claimant suffered a further breakdown in May 2000 and was subsequently retired from his position due to ill health.

The Claimant alleged that his employer had caused him to suffer a psychiatric injury by subjecting him to stress at work due to negligence and/or breach of statutory duty.

Both parties instructed consultant psychiatrists to report on causation and prognosis.

At an initial Case Management Hearing, the Claimant petitioned the Deputy District Judge for permission to instruct a second expert in the form of an occupational psychologist. The DDJ refused permission indicating that, upon the facts of this case, the expert evidence should be limited to psychiatrists for each party.

The Claimant’s appeal to the Circuit Judge was rejected.

He eventually secured permission to appeal to the Court of Appeal, arguing:

1 That evidence from an occupational psychologist was necessary in order to assist the Court with determining what steps a reasonable employer should have taken in order to assess the risk of psychiatric injury and the action required to avoid such injury occurring.

2 That the Court’s refusal to allow the Claimant to instruct an occupational psychologist gave rise to an inequality of arms since it was likely that the Defendant Trust would be able to call evidence by way of factual witnesses from members of their human resources department and/or occupational health unit which would have been the equivalent of quasi expert evidence from an occupational psychologist.

The decision

It was clearly common ground that the Claimant was a vulnerable employee (having had time off for stress in the summer of 1998). Consequently there were only two realistic possibilities in relation to causation. Either the Claimant’s breakdown had been caused by the imposition of an excessive work load upon the shoulders of an already vulnerable employee, or the Claimant had simply not been subjected to work overload and was just unable to cope with the rigours of a full time job.

Their Lordships were satisfied that these were issues of fact upon which they would not require assistance from an occupational psychologist.

Furthermore, it was not possible to determine whether or not an equality an arms would occur, since the litigation had not reached the stage where witness evidence had been exchanged. Their Lordships accepted that if, in the remote possibility, the Defendant did cause witness evidence of a “quasi expert” nature, then the Claimant would have an opportunity at that stage to make a further Application to the Court with regards to expert evidence. His initial Application, however, had been premature.

Their Lordships were satisfied that there could be no valid criticism of the Case Management decision taken by the Deputy District Judge or the Circuit Judge to limit expert evidence at that time.

Appeal dismissed.

For further details please contact Mark Hammerton at: markhammerton@veitchpenny.co.uk

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