England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM BARNSLEY COUNTY COURT
(Mr Recorder Jack)

		The Royal Courts of Justice The Strand London
		Tuesday 30 April 2002

Tuesday 30 April 2002

JUDGMENT
1. LORD JUSTICE MAY: This is an appeal by the defendants, The Post Office, against the judgment and order of Mr Recorder Jack given in the Sheffield County Court sitting at Barnsley on 4 July 2001. The claimant, Mr Young, claimed that as a result of breach of duty by the defendants, his employers, he was incapacitated from continuing to work with them due to psychiatric illness caused by the stress of his employment which they ought reasonably, so he contended, to have guarded against. The Recorder found in his favour on liability and gave judgment in the sum of £93,880.79 inclusive of interest. He also awarded the claimant his costs subject to a detailed assessment. The defendants appeal the decisions on liability and costs. They do not seek to appeal the quantification of the claim subject to liability. The Recorder refused permission to appeal. I gave permission to appeal on a paper application on 15 October 2001.
2. Mr Young was born on 6 February 1947. He began to work for The Post Office in 1978 as a Personal Transport Technician. In 1993 he became Workshop Manager at the appellants' vehicle depot in Scarborough. He remained in that post until May 1998 when he had to take early voluntary retirement because he suffered from a repeat of a nervous breakdown as a result of stresses on him at work.
3. The Recorder said that it was common ground that Mr Young's job as manager of the Scarborough workshop was a fairly stressful job. He was in sole charge of a workshop with four men under him and no other managers to turn to in the immediate vicinity. He was not someone who had been brought up as a manager from leaving school. He had been promoted to manager after starting as a technician. He came under somewhat greater stress in 1995 when a number of computer systems were introduced relevant to his work. There was a system called VWMS and later another called VIZ. Mr Young was also provided with a PC. Its use was purely optional, but the Recorder said that there clearly was an expectation that employees would spend some time getting used to the computers.
4. The Recorder found that Mr Young was a hardworking, conscientious man who did his best to do what was expected of him. He tried to get to grips with the PC. He tried to get training for it, but without success.
5. Mr Young did not have a previous history of psychiatric illness, but from about 1994 he was beginning to show signs of stress. He was prescribed anti-depressants. His wife gave evidence that in the two years after this things were getting worse for him. There was then evidence that he was feeling under real pressure by the early part of 1997. The Recorder referred in detail to the terms of two appraisal documents, which he described as containing cries for help. One was a memorandum dated 15 January 1997 complaining about a COSHH list, in which Mr Young said that he found it impossible to get anything done to his list due to the extended workload that he already had. He realised that it was important, but time did not allow for this important work to be done. He then wrote on the memorandum in capital letters "I NEED SOME HELP".
6. The Recorder said that Mr Young did not receive any real additional support. By May of 1997 he had cracked and had to have time off work suffering from depression. He was off work for some four months. In the context of Mr Young's claim against the defendants for breach of duty, the Recorder said that he had to consider whether it was reasonably foreseeable that this would happen. He referred to a joint statement of the medical experts in which it was said that, if the facts as alleged by Mr Young were true, it could not have been predicted that these were working conditions which would have given rise to a foreseeable risk of injury. The Recorder questioned whether the medical experts had the full picture, but he nevertheless concluded that the depression which led to Mr Young being off work for four months from May 1997 was not a reasonably foreseeable consequence of stress caused by his work. Mr Cooksley QC, his counsel, tells us that it was not contended otherwise at trial, although this appears to have been a main part of his case as initially pleaded. No doubt the joint view of the medical experts tempered the way in which his claim was presented at the hearing.
7. After four months off work, Mr Young returned in about September 1997. His evidence was that when he went back to work he felt 80 per cent recovered. The Recorder accepted his assessment. While he had been off sick he had been visited on a number of occasions by Mr Bolton and Mr White on behalf of his employers. As a result of this, arrangements were put in place for him to return to work on a flexible basis. He could work the hours he wanted and he could leave if he wanted. He could go out and take a walk if he wanted. The aim was that he could gradually reintroduce himself back to work. He was under no compulsion, according to the appellants, to do any work at all, nor was he obliged to attend work if he did not want to.
8. Unfortunately, his return to work lasted no more than about seven weeks. In early November 1997 he was off sick again with a recurrence of the depression. Thereafter he was unable to return.
9. What happened during the seven-week period? Part of the arrangement was that Mr Young would be visited by the management. The Recorder held on the evidence that he was visited during the first two weeks by Mr Bolton and Mr White, but that Mr White made no attempt to carry out a promise that he would spend some time with him and assess any changes that needed to be made. After about two weeks Mr Young went on a course at Ross-on-Wye which lasted all or most of a week. The Recorder said that he was obliged to play an active part in this course and he found that it must have been very stressful for somebody in his condition, only recently back at work. Mr White apparently did not know that Mr Young was to go on this course and he accepted that it was wholly inappropriate for him to do so in the circumstances. When Mr Young returned from the course Mr Legg, who had taken over as workshop manager during Mr Young's earlier absence, went on a planned holiday. For the week that he was away Mr Young was left to run the workshop. When Mr Legg returned from holiday he had a lot of other work to do and so the task of running the workshop again fell to Mr Young. These stressful events meant that by the beginning of November 1997 Mr Young could no longer cope and, as I have said, he was off sick again. In so far as Mr Young during this period did not complain, the Recorder referred to his previous experience of making complaints which were not acted upon.
10. The Recorder found that the employers knew that, when he returned to work in September 1997, he needed to be looked after. They set up a package to deal with this but did not adhere to it. It was insufficient to leave Mr Young to tell them if he was not coping. The Recorder accordingly found that there was a clear breach of the appellants' duty of care and that it was that breach which led in due course to Mr Young's recurrence of breakdown. He rejected the submission on behalf of the appellants that it was up to Mr Young to sort things out by raising the alarm and saying that he could no longer cope.
11. The Recorder accordingly found in Mr Young's favour on the issue of liability. The appellants' case is that he was wrong to do so.
12. Mr Wilson, counsel for the appellants, notes that the finding of breach of duty was limited to the period of seven weeks after Mr Young returned to work and that the factual findings upon which the decision depended were limited to:

(a)that Mr White and Mr Bolton did not visit Mr Young sufficiently regularly;

(b)that Mr White did not assess Mr Young's capacity for work;

(c)that the appellants allowed Mr Young to attend the Ross-on-Wye training course without considering whether this was in the circumstances suitable and without preventing him from doing so;

(d)that they allowed him to take over from Mr Legg as workshop manager during the week Mr Legg was on holiday; and

(e) that they allowed Mr Young to continue working in this capacity on Mr Legg's return from holiday because Mr Legg had other work to do.

13. Mr Wilson submits that the Recorder's finding failed adequately to take account of the evidence as a whole. This included that on Mr Young's return to work in September, he was entirely free to come and go as he pleased and was not obliged to do any work, or even to go to work at all if he wished to stay at home. This arrangement was never countermanded. It was to ease him slowly back to work at his own pace. No timetable was ever set for him to return to full-time work. Any work that he chose to do he did of his own volition. He was not, for instance, instructed to take over from Mr Legg when Mr Legg was away on holiday. Mr Legg's evidence was that Mr Young did on occasions go off for a walk. There was evidence from a Mr Dinsdale and from Mr Legg himself that the gradual return to work appeared to be working. Mr Young was, it is submitted, best placed to assess the state of his own mental health. There was some expert evidence to that effect. At no time did Mr Young indicate to his superiors that he felt he either was or would be unable to cope with any of the work that he chose to do. His own evidence was that he believed he could cope at work, even when Mr Legg went on holiday. He accepted that Mr Bolton and Mr White were never more than a telephone call away and that he had the option of telephoning them should he have wished. If the course which he attended was stressful, it would have been reasonable for Mr Young to raise this with his superiors, and he did not do this. Professor Sims, who gave evidence, accepted that if Mr Young did not communicate his feelings to those around him, they would not necessarily know how he felt. It was submitted that the Recorder's finding that it was reasonable for Mr Young not to do this was against the weight of the evidence.
14. Mr Wilson submits that the Recorder was wrong in his implicit finding that the second episode of depression was reasonably foreseeable. He submits that this finding cannot stand in the face of the evidence of Mr Legg, who was Mr Young's closest work colleague and who worked with him every day at the workshop both before and after his illness. He worked with him up until he went on the training course. He spoke to him after he returned from the training course about taking over from him while he was away on holiday. Mr Young raised no concerns. When Mr Legg returned from holiday he worked with Mr Young for several days before Mr Young went off sick permanently. Again, during that period Mr Young raised no significant concerns with Mr Legg. Mr Legg's evidence was that at no time during Mr Young's return to work did he have any significant concern for his health that gave rise to a worry that he would again suffer a psychiatric injury. His evidence was that if he had been worried he would have contacted the senior management. In the face of this evidence it is submitted that the Recorder should not have found that a recurrence of the depression was reasonably foreseeable. It is submitted that the Recorder failed to address Mr Legg's evidence and submissions that were made about it.
15. Mr Wilson also relies on Mr Young's own evidence. This was to the effect that, when he returned from the training course, he believed that he could cope while Mr Legg was away on holiday. When it was suggested to him that if he believed that he could cope there was no good reason why Mr Bolton or Mr White should have believed otherwise, his reply was "Perhaps, yes". It is submitted that there was no good reason to suppose that the joint medical experts' view about foreseeability applied only to the period up to May 1997.
16. Mr Wilson further submits that the Recorder placed undue weight on similarities between the case before him and Walker v Northumberland County Council [1995] 1 AllER 737. Mr Walker was employed by the defendant local authority as an Area Social Services Officer. He was responsible for managing four teams of social service field workers in an area which had a high proportion of childcare problems. Both he and Mr Young in the present case went off work through stress and then returned to work before going off sick again permanently. In Walker, Colman J held that where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown through the stress and pressures of his workload, the employer was under a duty of care, as part of the duty to provide a safe system of work, not to cause an employee psychiatric damage by reason of the volume or character of the work that the employee was required to perform. On the facts of that case, it was not reasonably foreseeable to the local authority before his first illness that his workload would give rise to a material risk of mental illness. However, as to the second illness, the local authority ought to have foreseen that, if he was again exposed to the same workload, there was a risk that he would suffer another nervous breakdown which would probably end his career as an area manager. The local authority ought to have provided additional assistance to reduce his workload and in choosing to continue to employ him without providing effective help, it acted unreasonably and in breach of its duty of care. Mr Wilson draws attention to differences between that case and this on the facts. In particular, Mr Walker returned to his old job without alteration but with some assistance. The same applied to the cases considered by this court in Sutherland v Hatton, to which I shall refer in a moment.
17. In the end, Mr Wilson's principal submission is that in the present case the appellants took steps to enable Mr Young to return to work at his own pace. He was not required to return immediately to his former position and was not indeed required to do any work at all if he felt that he was over-stressed. The scheme was more than reasonable. In the limited period of time upon which the Recorder's finding of liability rested, he did not communicate to anyone the fact that what he was doing was becoming stressful. The appellants therefore did take reasonable steps and had no means of knowing that they were not successful. In so far as the appellants did not do precisely what they said they would, that, it is submitted, is an insufficient basis for a finding of breach of duty.
18. In a supplemental skeleton submission, Mr Wilson has referred us to the recent judgment of this court on Sutherland v Hatton [2002] EWCA Civ 76, in which the judgment of the court was given by Hale LJ. The court was dealing with number of claims in which psychiatric illness was alleged to have been caused by occupational stress. The judgment considers the law between paragraphs 18 and 43 and paragraph 43 contains a summary list of practical propositions which emerge. Highlights of that judgment relevant to the present appeal include, in paragraph 22, a quotation from the judgment of my Lord, Simon Brown LJ in Garrett v London Borough of Camden [2001] EWCA Civ 395 at paragraph 63, as follows:

"Many, alas, suffer breakdowns and depressive illness and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simple 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."

19. Under the heading "Foreseeability", Hale LJ said at paragraph 23 in Sutherland that the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. She also said that, because of the very nature of psychiatric disorder, it is bound to be harder to foresee than is physical injury. In paragraph 25, Lady Justice Hale said that a number of factors are likely to be relevant. These include the nature and extent of the work being done by the employee and, more important, the signs from the employee itself. At paragraph 29 she said that, unless a reasonable employer knows of some particular problem or vulnerability, an employer is usually entitled to assume that the employee is up to the normal pressures of the job. Generally he is entitled to take what he is told by or on bahlf of the employee at face value. At paragraph 30 she said that 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. In paragraph 31 she said that 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. As to breach of duty, Hale LJ said in paragraph 33 that in every case it is necessary to consider what the employer not only could but should have done.
20. Mr Cooksley, on behalf of Mr Young, submits that no criticism was made of the appellants in relation to their conduct during Mr Young's first period off work. He was visited, in particular by Mr White. During that visit an arrangement was agreed to ensure that when he returned to work he did not suffer a relapse in his condition and to enable him gradually to return to full-time work. The Recorder found that had that arrangement been adhered to, there was really nothing more that the appellants could reasonably have been expected to do. The problem was that the appellants did not stick to the arrangement. It was insufficient to leave it to Mr Young himself to judge the extent and type of work that he was able to sustain. The Recorder, it is submitted, was entitled to find that it was up to the appellants to ensure that the arrangement was adhered to. The appellants were well aware that Mr Young was psychiatrically vulnerable, because he had just been off work for four months due to a stress-related illness. The managers ought to have known, as apparently they did not, that Mr Young was going to be sent on a course and that Mr Legg had a pre-booked holiday. The appellants' own witnesses accepted in evidence that what happened was inappropriate and had they known the full facts they would have acted differently.
21. Mr Cooksley submits that the appellants' submissions on foreseeability, based on Mr Legg's evidence, are misconceived. Stress-related psychiatric illness may not have been foreseeable before May 1997 but it certainly was foreseeable after Mr Young's initial four-month period away from work.
22. As for breach of duty, Mr Cooksley stresses that Mr White accepted in evidence that it was wholly inappropriate for Mr Young to be sent on the residential course in Ross-on-Wye, which he found very stressful. Mr Bolton accepted in evidence that he did not know about Mr Legg's holiday and that had he known he would have sent somebody to cover the position. Both Mr Bolton and Mr White agreed that it was inappropriate to leave Mr Young running the workshop after such a short period of time. Mr Wilson submits that Mr White's evidence was not simply that on which the Recorder relied. He also said in re-examination that if he had known about the proposal that Mr Young would be forced to go to Ross-on-Wye his reaction would have been that he would not have had to go unless he wanted to go.
23. I have not found the question of liability in this appeal easy. I am quite unimpressed by Mr Wilson's submissions on foreseeability. Mr Young had already suffered from psychiatric illness resulting from occupational stress. His employers knew this. After May 1997 it was, in my view, plainly foreseeable that there might be a recurrence if appropriate steps were not taken when he returned to work. The employers owed him a duty to take such steps.
24. There is, in my view, some force in the submission that there was no breach of duty when Mr Young came back to work on an entirely flexible basis under which the amount and type of his work were his own choice. The case is not as strong as that which Colman J considered in Walker, for in Walker no special arrangements were made. On the other hand, the Recorder here was, in my judgment, entitled to hold that the appellants failed to carry through the arrangements which they made. Mr Young's managers did not know what he was doing and agreed in evidence that the course at Ross-on-Wye and the work he did when Mr Legg was away were inappropriate. Seven weeks is quite a short time and the facts supporting the breaches of duty are not extensive. But I have concluded that breaches of duty were established and that the Recorder was entitled so to conclude.
25. The next ground of appeal concerns contributory negligence. The appellants submit that, if their case that there should be no liability at all is not upheld, the Recorder was nevertheless wrong not to find contributory negligence on the part of Mr Young. They rely on the same facts and contend that Mr Young chose to burden himself unnecessarily with work and chose not to voice any concern he had about his health to his superiors. It would have been simple to do so and that would have resulted in appropriate action by them. It is contended on behalf of Mr Young that he was found to be a hard-working, conscientious man who was likely to accept what he was asked to do. When he returned to work, he was psychiatrically vulnerable. It is submitted that the Recorder was perfectly entitled to reject the appellants' submission that he was in some way to blame for his subsequent breakdown, especially in the light of Mr Bolton's evidence when he accepted that it was his responsibility to ensure that the original arrangement was adhered to. It is submitted that in cases of this type it would be very rare to hold that a weak and vulnerable employee should shoulder some responsibility for the consequences of this kind of breach of duty by his employer.
26. In my judgment, the Recorder was here entitled to reach the conclusion which he did. The case that there was no breach of duty depended heavily on the proposition that it was up to Mr Young to speak out if he felt that he was undergoing stress. Having rejected this case, I consider that the Recorder was entitled to take the view on the facts of this case that it was not negligent on Mr Young's part not to speak up. He was both conscientious and vulnerable and can scarcely be blamed for doing his best to undertake the tasks which he understood were expected of him, when he had made complaints in the past which had not been heeded. Although, as the case of Sutherland indicates, in many circumstances an employer may not be expected to know that an employee who does not speak up is vulnerable, an employee who is known to be vulnerable is not necessarily to be regarded as responsible for a recurrent psychiatric illness if he fails to tell his employer that his job is again becoming too much for him. A finding of contributory negligence in a case of psychiatric illness, although no doubt theoretically possible in other circumstances, does not in my view sit happily with the facts of this case. I know of no case in which a claimant such as Mr Young, vulnerable to psychiatric illness which he successfully holds to his employers, has been held to be contributorily negligent, and counsel was unable to draw our attention to any such case. I would reject this ground of appeal.
27. The final ground of appeal concerns the Recorder's costs order. The essential submission is that the factual case upon which Mr Young succeeded was not pleaded and did not feature in the witness statements. It only surfaced, it is said, in Mr Cooksley's written skeleton opening, which appeared very shortly before the hearing. No application was made to amend the pleadings. Mr Wilson accepts that the training course at Ross-on-Wye and Mr Legg's holiday were mentioned by Mr Young to the experts, but he submits that that was insufficient to raise those matters as allegations of negligence. He submits that modern civil litigation should be conducted openly and in a way which enables parties to know where they stand at the earliest possible stage and at the lowest practicable cost, so that they may make informed decisions about their prospects and the sensible conduct of the case. It is submitted that the case as originally pleaded failed and that that which succeeded was introduced at the very last moment. It is submitted that in these circumstances the appellants should have their costs up to the first day of trial.
28. It appears from a discussion about costs which took place after the Recorder had given judgment that he took the view that subparagraphs (xi) and (xii) of the Particulars of Negligence in paragraph 18 of the Particulars of Claim covered the allegations which succeeded in general terms, and that additional specific allegations were covered in the medical reports. Those read:

"(xi) Following the Claimant's first period of absence of work due to stress, failed to carry out any of the assurances that had been given to him prior to his return to work that his workload would be alleviated and his duties reassessed;

(xii) Expected the Claimant within a short time of his return to work to resume his full duties and lastly subjected all the pressures which caused him to go off work in the first place".

29. Mr Cooksley further submits that the allegations may be seen on page 5 of Professor Sims' report and in paragraph 67 of Dr Richards' report. It is submitted that the appellants had ample opportunity to take instructions on these matters and to conduct their case accordingly. It is submitted that the Recorder was entitled in his discretion to make the costs order which he did. Mr Wilson accepted that, in the event, if the allegation had been at the forefront of the pleadings and the witness statements at the outset the appellants would still have contested it to the end.
30. In my judgment, it was entirely open to the Recorder in this case in his discretion to make the costs order that he did. Not only would additional pleadings and additional witness statements have made no difference, as Mr Wilson accepts, to the way in which the case was conducted to the conclusion, but I also consider that the allegations in the particulars of negligence in paragraph 18 of the particulars of claim did cover the allegations which succeeded.
31. I have detected no respect in which the appellants were prejudiced by the way in which the case was conducted, pleaded in the witness statements and brought forward and it seems to me that the Recorder had a discretion in those circumstances to award costs in full where it was not clearly established that had different pleadings and different witness statements been brought forward money would have been saved.
32. For these reasons I would dismiss this appeal.
33. LADY JUSTICE ARDEN: I agree.
34. LORD JUSTICE SIMON BROWN: I also agree.
ORDER: Appeal allowed with costs, to be subject to detailed assessment. (Order not part of approved judgment)