England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London, WC2 Friday, 4 October 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from a decision of Her Honour Judge Plumstead made in Norwich County Court in March 2002. Permission was refused on paper by Lady Justice Hale, a circumstance that is of some note in this case and to which I shall briefly return.
2. The claim was for injuries caused by stress at work. The claimant, Mr Cowgill, had for some considerable period been employed by the defendant, Lowestoft College, in their reprographic or printing department. Mr Cowgill was apparently a qualified printer but his duties at Lowestoft appear to have been of the somewhat more humble nature of organising and operating the copying machine.
3. The judge heard, and went out of her way to elicit, a considerable amount of evidence about circumstances and operations of the college, from which it was made plain that a very substantial volume of photocopying was from time to time required, with various departments seeking perhaps understandably to have their own work completed promptly. In particular, there was a considerable weight of such copying at the beginning of the academic year.
4. The illness of Mr Cowgill, who was then 57 years of age, occurred on 5 December 1997. It was sudden, and caused him to collapse albeit briefly when he came home from work. He was subsequently examined by psychiatrists, and stress related injury was diagnosed.
5. In looking at the law as to the liability of an employer for such injury, the judge was taken to and carefully considered the judgment in this court in the comparatively recent case of Sutherland v Hatton [2002] EWCA Civ.76 (not otherwise reported), the leading judgment of which was delivered by Lady Justice Hale. Lady Justice Hale said - and this is the passage on which Mr Featherby for the applicant particularly relies -

"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."

6. Lady Justice Hale said there was no obligation on the employer under that rubric to make searching and extensive inquiries.
7. The main point put before us by Mr Featherby today is that there was no sufficient evidence that entitled the judge to find as she did that the college was sufficiently on notice of Mr Cowgill's vulnerability to be obliged, when there was a particular crisis in the photocopying world which appears to have occurred at the beginning of the term in 1997, to take steps to protect him from the effects of that burden.
8. Mr Cowgill told the judge, and this appeared for the first time at the trial, that he had specifically told a supervisor, Mr Frisby, in 1997 that the volume of work about which he was undoubtedly complaining was dangerous to his health. The judge did not accept the latter part of Mr Cowgill's evidence. She found that although there had been what can only be described as alarming pressures on the department which she explained in some detail, and that Mr Cowgill had complained about that, he had not added the crucial component from the point of view of Sutherland v Hatton that there was danger to health. She did accept Mr Cowgill's evidence in relation to a previous illness he had suffered in 1994. He had visited his doctor and after what is clear from the transcript of the trial was very detailed investigation of his dealings with the doctor, it became clear that he had complained in 1994 about stress. His evidence was that during his period of illness when he was off work, he had occasion to go back to the college to collect a certificate at a ceremony presided over by the then college principal, Miss Nicolson. His evidence was that he had told Miss Nicolson when she inquired about his illness that it was indeed, and had been diagnosed by the doctor as being, related to stress at work.
9. When he returned to work steps were taken to ease his workload, and memoranda, or at least a memorandum, internally in the college indicated that that had been done to assist him to return to full health. Mr Featherby accepts the latter point, but contends that that had been done to help Mr Cowgill without it being realised or accepted by the college that his illness was related to his work. The judge did not accept that claim and did not accept the evidence given on behalf of the college that there was no connection made in 1994 between the illness and the work situation. She also accepted Mr Cowgill's own evidence that he had made the position clear, albeit informally, to Miss Nicolson, and that Miss Nicolson had effectively taken responsibility, again informally, for doing something about it.
10. The main thrust of Mr Featherby's complaint today is that it was illogical for the judge to have accepted Mr Cowgill's statement about what happened in 1994 and his dealings with the college with regard to his health when she had rejected his claims to have made that point clear in 1997. This was, and is, a crucial part of the case because it was on the basis of the college's knowledge in 1994 that the judge concluded that the requirement posited by Lady Justice Hale in Sutherland v Hatton had been fulfilled: not by anything said in 1997 but by institutional knowledge of the situation gained in 1994.
11. It was a matter for the judge what parts of Mr Cowgill's evidence she accepted and what parts she rejected. She considered that Mr Cowgill was an honest witness. When she rejected his evidence as to 1997 it does not seem to me from what the judge said that she rejected it because she thought Mr Cowgill was deliberately fabricating, but she thought that he had made an understandable mistake. Against that background there was no reason, in itself, why she should therefore reject the evidence of 1994. Having heard Mr Cowgill, it was open to her to accept what he said, and she cannot be criticised for so doing. Further, the judge took some pains to go through the documentation of 1994, and she was justified in thinking that the documentation, although not in itself determining the point, at least supported the evidence that Mr Cowgill had given.
12. I would therefore not accept that there are grounds for criticising that crucial finding of the judge, much less that there are grounds for that finding to be further investigated in this court.
13. Other complaints were made in the grounds of appeal of which the only one that now survives, and survives in a moderated form as put by Mr Featherby this morning, is that the judge intervened excessively in the course of the trial and that she displayed an attitude in her interventions that was partisan in favour of Mr Cowgill. Lady Justice Hale, in assessing this appeal, read all of the parts of the transcript of which specific complaint was made in Mr Featherby's skeleton. I have done the same. It is right to say that the judge did intervene more than perhaps some other judges might have done. But if one looks at the passages particularly complained of, apart from one question put to the witness Mr Taylor. I find it very difficult to draw from that any sign that the judge approached the matter with a closed mind. She was concerned to understand the case which was not, on its face, particularly easy, and to elicit in particular how the college worked, who related to whom and what the alleged pressures were. Most of her interventions were directed to that end. Also, it does not seem to be said, and I do not think it could be said, that the judge intervened in a way that prevented either counsel from putting their case. Many of the interventions displayed an anxiety to be clear what that case was.
14. Here again, I think this case falls substantially short of demonstrating the sort of judicial intervention or judicial parti pris that would entitle this court to intervene. The judgment itself contains a careful and full analysis of the evidence, which reads as that of a judge who was approaching the matter with fairness and care. In my judgement, there are no grounds on which this court should intervene. I would not grant permission.
15. LORD JUSTICE KENNEDY: I agree. I too share some of the misgivings of my Lord as to the conduct of the trial itself. I would not wish it to be thought this court regarded that as being the sort of pattern to be followed in the future.
16. That said, there does not seem to me to be laid before us any arguable ground of appeal which has reasonable prospects of success.
Order: Application refused.