England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT

		Royal Courts of Justice Strand London, WC2
		6 December 2002

Friday, 6 December 2002
1. LORD JUSTICE SCHIEMANN: Lady Justice Hale will give the first judgment.
2. LADY JUSTICE HALE: The claimant appeals against the order made by His Honour Judge Barclay in the Bristol County Court on 17 July 2001 dismissing the claim for damages against his employer. The judge himself gave permission to appeal at a hearing in January 2002 on the issue of causation only.
3. The claimant argues that the judge applied the wrong test for causation, namely, whether the defendant's negligence had caused him to lose his job, rather than the correct test, namely, whether it caused him recoverable damage of some kind. The defendant agrees that the correct test is the latter, but argues that that was the test to which the judge addressed himself and that he dismissed the claim for that reason.
4. The claimant, who is now aged 51, began work for the defendant bank in 1969 at the age of 17. He left work on 7 August 1997 and was retired on ill-health grounds on 1 June 1998 after 25 years. It was common ground that the claimant had suffered depressive illness in 1995 to 1996 and again in 1997 to 2000. The issue between the experts was whether this was caused by his work or by a natural history of depression recurring from time to time. The only negligence now alleged against the defendant related to the last few weeks or days of the claimant's working life. The legal issue between the parties, therefore, was whether that breach of duty caused or materially contributed to a recognised psychiatric illness or its acceleration or exacerbation. If it did, issues as to how that should be quantified were matters of quantum rather than liability and this was a liability only hearing.
5. The judge recounted the working and medical history in some detail. Signs of depressive illness began in around 1994. The claimant had his first breakdown from September to December 1995 after his transfer from the central lending department to be senior lending officer in a branch. He was offered a choice between retirement or a part-time role with fewer responsibilities, and he took the latter. There was then a gradual rehabilitation over the next few months which was complete by June 1996. He moved to another branch as junior lending officer; that is a Grade 4 role, when his status and pay were at Grade 5. He made a couple of mistakes in the autumn of 1996 which led to a disciplinary appraisal, but nothing was taken further. Otherwise things seemed to be going well. He had a favourable appraisal in January 1997. In March 1997, therefore, he was given more responsibility consistent with his grade, becoming the senior lending officer at that branch. However, he also consulted his general practitioner about chest pains and palpitations which he associated with stress at work, while his GP was concerned about the possibility of a heart condition and referred him for tests.
6. There began to be manifestations of stress in his behaviour at work - shortness of temper, banging the phone down and things of that nature. On 24 June he was referred by his manager, Mr Boardman, to Sarah Chapman, at Occupational Health. The referral document mentioned "increasing signs of stress/breakdown" and "previous lengthy period of ill-health, a stress-related illness." There is nothing in her response memo of 8 July 1997 about work-related stress. The concern reported was the forthcoming investigation of his chest pains. However the memo did say:

"Over the forthcoming month or so, whilst Nick is being more fully investigated, until a firm diagnosis is reached and is properly treated, Nick will have to be supported in the workplace and allowances made to enable him to attend various appointments et cetera."

The judge accepted that the claimant had mentioned stress to her, and that his manager, Mr Boardman, knew about the situation anyway. Next day the general practitioner signed him off work for a month with chest pain but in fact he returned after a week.

7. In the week beginning 4 August one member of the three-man team, his superior, went on holiday and no replacement was provided. The claimant was expected to hold the fort for him without much in the way of help or support from above. Nothing had been done in response to Ms Chapman's memo.
8. The claimant wrongly returned two business cheques on 4 August, which was discovered on the 5th, and he was (as it was put) carpeted by Mr Boardman on the 6th. Although Mr Boardman decided to take the matter no further because of the claimant's anxiety/health conditions, "where I have been aware for several weeks now that he is not fully fit", the claimant did not feel able to continue work. His last day was 7 August. He saw his general practitioner on 8 August. He was given a medical certificate for two months. His tests for cardiac problems proved negative and he was referred to a psychiatrist. The psychiatrist reported to the bank that the claimant suffered from "moderate reactive depression with symptoms of panic, anxiety, confusion and thought block as a result of being over-stressed at work." The psychiatrist referred to how the modern banking world had changed and how changes in a business environment can become extremely "psycho-toxic." Hence the claimant's employment was terminated on 1 June 1998.
9. At the trial there was a dispute between the two expert psychiatrists, Dr Webb for the claimant, and Dr Aylard for the defendant, as to whether the depressive illness had been caused by his work or not. The defendant's position was that that question did not need answering because the only negligence now alleged was in the last week, by which time the claimant was already suffering from this illness. But the judge answered it anyway. Dr Webb considered all other risk factors and found none. The claimant was not vulnerable, he had a very stable lifestyle and in his view, therefore, the stress had to be work-related. He also felt it unlikely that a recurrent depression would remit without treatment or progress from infrequent and minor to frequent and major. Dr Aylard, on the other hand, said that he had encountered such cases. He thought the difficulty of coping with his work was a manifestation of the underlying depressive illness rather than its cause. The judge preferred Dr Webb's analysis. He found that the claimant had suffered a depressive illness as a result of his work since 1995, that this was a single protracted episode which had waxed and waned, but it would not have developed in the absence of pressure at work, the principal stress precipitating this depression.
10. The judge also found that the defendant had been in breach of duty during that last week. Senior management knew of the claimant's vulnerability, giving this particular claimant even modest extra responsibility at a time when the bank knew that he was vulnerable and having difficulty even coping with his own job and not providing effective cover for the absence of a senior colleague was to expose him to the foreseeable risk of injury; being answerable to unfamiliar and difficult customers when he had the added responsibility of chasing up default referral which was normally dealt with by the absent accounts manager was, in the circumstances, negligent.
11. The judge then moved on to the issue of causation. He defined the issue thus:

"The final issue is whether the Claimant has demonstrated, on the balance of probabilities, that the Defendants' negligence has caused or, as I understand the law, at the very least has materially contributed to any damage he suffered so that in law he may recover it from the Defendants. The Claimant claims general damages for pain and suffering and loss of amenity. He claims loss of earnings to date and a future loss of earnings in a claim which is said to be worth £140,000 or thereabouts. I remind myself that I am dealing at this stage with liability only, but of course, in order to found liability, I must address the vital issue of causation."

12. Mr Pugh, who appears for the appellant claimant today as he appeared for the claimant before the judge, accepts that at that stage the judge asked himself the right question. The defendant's argument was that Dr Webb's opinion did not relate to the period after Ms Chapman's memo. The claimant had been deteriorating and his illness had been recurring during the first half of 1997. He was heading for a fall. Only in re-examination did Dr Webb say that if the worst of the stressors happened in mid-1997 they would have significantly assisted him on the way down.
13. Dr Aylard's view was that the claimant was well into the depressive episode by the time he saw his GP in June 1997. The carpeting and other events in the first week of August were unhelpful but not decisive, he would have had to have gone on long-term sick leave within days, even without lack of support. He could not have coped with his work earlier in June. The judge referred to counsel's note of the evidence, which is very close to that in the transcript, that that first week in August would not make any difference in the long run, it would make matters worse over a period of weeks, even if supported he would still have relapsed, perhaps brought forward what would have happened within a few days. Hence the defendant's argument was that the "but for" test of causation was not satisfied.
14. The claimant's argument before the judge was that one does not need a psychiatrist to answer the question of what made him so depressed that he lost his job and his earning capacity. Mr Pugh accepts that at that stage he was still putting his case as high as he possibly could on behalf of his client and arguing that the negligence in the last week caused, or materially contributed, not only to some additional pain, suffering and loss of amenity, but to the job loss and its attendant financial consequences as well.
15. The judge consulted Clerk & Lindsell, and referred to the well-known cases of Bonnington Castings v Wardlaw [1956] AC 613, McGhee National Cold Board [1973] 1 WLR 1 and Wilsher v Essex Area Health Authority [1988] AC 1074 and quoted various passages. He then went on:

"... I have had to consider whether, notwithstanding the absence of evidence, as it seems to me there is from the experts in the case, that the "but for" test is satisfied, whether nevertheless the Claimant can succeed on the basis that there has been a material contribution to his depressive illness at the end of his working life that has caused him to leave work and suffer consequential loss. I have to say that I do not find it possible to make that finding. It seems to me that, if I were to do so, it would fly in the face of the evidence from both psychiatrists if I was to assume, with absolutely no medical training and even having heard all the evidence, that the fact that the Claimant had to leave work and thereby has suffered loss was a result of the Defendant's negligent conduct between 21st July and 7th August 1997 rather than, as the experts in effect both say, as a result of his second breakdown generally..."

Clearly at that point the judge was looking at the claimant's best case that the negligence had led to the loss of his job. Mr Pugh does not challenge the judge's finding, which he accepts was open to him on the medical evidence, that the negligence did not lead to the loss of his job.

16. The judge then reminded himself that counsel for the defendant had pointed out that that was not all:

"As I have already said, Mr Laughland reminded me in his closing submissions that his expert, Dr Aylard, was saying that the Defendant's conduct, which I find to be negligent, might have accelerated what happened to the Claimant by a few days. He says that might, if the court took that view, mean that there was some minimal damage flowing for the Claimant but nothing more than that, if the court in fact did not invoke the de minimis principle which is precisely what is referred to in paragraph 2-15 of Clerk & Lindsell ..."

The judge then reminded himself of the evidence of Dr Webb and Dr Aylard on this point. He concluded:

"I find that really, although I remind myself of course I am dealing with liability and not quantum, if it is to be taken into account at all, it really does, I am sorry to say for the Claimant, come within the definition of de minimis, if one is entitled to use the Latin expression still."

He went on to explain why he reached that conclusion:

"The plain fact of the matter is that the doctors seem to me to have been addressing an entirely different issue, namely, the entirety of the last few years of the Claimant's working life, and whether that revealed negligence in the bank. Looking at all the evidence which I have received from those experts regarding the last few days of the Claimant's working life in which negligence has been alleged, and which I have found to be negligence, in fact none of that evidence, as I see it, demonstrates that the Claimant's position was worsened or his departure was hastened or that the outcome was in any way altered by the negligent conduct of the bank."

17. In this appeal it is argued that the judge focussed throughout on whether the negligence had caused the claimant to leave work and suffer consequential loss, rather than the wider issue of whether the negligence caused some recoverable damage. It is argued that all the passages in the judgment dealing with causation should be read as relating only to the claimant's loss of his job.
18. It is then pointed out that the exacerbation or acceleration in his psychiatric illness would sound in general damages just like the exacerbation or acceleration of any other illness or injury. Mr Pugh goes on to argue that the evidence of both doctors supported some exacerbation or acceleration. Dr Webb - "assisted significantly on the way down"; Dr Aylard - "would make things worse over a period of a few weeks". The effect of that lack of support was to bring forward something which would have happened anyway "within a few days". Mr Pugh argues that that is non-negligible damage and that both the medical evidence and the non-medical evidence supported some damage caused by events during that last week. It was common sense that the impact of the criticism for his error during that week was going to make matters worse. There was both the applicant's and his wife's evidence of the impact of those last few days. He had been coping earlier in the year and so on. Mr Pugh accepts that this would have an impact only on general damages for pain, suffering and loss of amenity, and I believe he also accepts that this would be the level of any minor injury, given the very moderate level of acceleration or exacerbation that might be spelt out of that medical evidence.
19. The defendant argues that the judge was entitled to conclude that none of the expert evidence demonstrated that the claimant's position had been worsened or his departure hastened or that the outcome had been in any way altered by the negligent conduct of the bank. Both experts had been concentrating on the whole of this period rather than on those last few days. They only got to that point at the last moment in their evidence and their answers should be seen in context. The judge was therefore entitled to conclude that there was no recoverable loss of any kind.
20. For my part I am quite unable to accept that the judge was dealing throughout only with the loss of the claimant's job. Many references in the judgment make it clear that he had in mind at various times the totality of possible losses, and types of loss that might be caused, including decreasing efficiency at work. The fact that when he was invited by different counsel to grant permission to appeal some months later the judge appreciated that someone in this court might think that he had not answered the question is very far from an acceptance on his part that he had in fact not done so. The judge saw and heard the witnesses and the arguments as they were delivered. In my view he was entitled on the evidence to reach the conclusion that those very late additions to the medical evidence did not require him to find that the negligence had caused or materially contributed to an appreciable or measurable exacerbation of an illness which, on any view, had been developing for some months and was inevitably going to result in the eventual outcome.
21. There are serious dangers in trying to read transcripts of judgments and transcripts of evidence as if they were statutes without the whole feel for the flavour of the case on the ground and in context. The judge had the flavour of the case on the ground and in context. It is unique to the people who were there, and for my part I would not interfere with his clear finding of fact and would dismiss this appeal.
22. LORD JUSTICE JONATHAN PARKER: I agree.
23. LORD JUSTICE SCHIEMANN: I also agree.
(Appeal dismissed with costs; stay order of the judge on costs set aside).