Title: Court of Appeal Judgment Template
Author: BishopR
Last saved by: viky.martzoukou
Company: sbw

Case No: B3/2003/2407
Neutral Citation Number: [2005] EWCA Civ 173
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE MITCHELL
Sitting at Telford County Court
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24 February 2005
Before :

LORD JUSTICE KENNEDY
LORD JUSTICE LONGMORE
and
LORD JUSTICE MAURICE KAY
- - - - - - - - - - - - - - - - - - - - -
Between :

| Susan Barbara Banks (by Sally Martin her litigation friend) | Appellant
| - and - |
| Ablex Ltd | Respondent

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Allan Gore QC and Richard Davison (instructed by Messrs Yanlon Bowdler) for the Appellant
James Dingemans QC and John Norman (instructed by Messrs Plexus Law) for the Respondents

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Kennedy : 
1.	This is a claimant’s appeal from a decision of Judge Mitchell, sitting in Telford County Court, who dismissed the claimant’s claim for damages for personal injuries and breach of statutory duty and gave judgment for the defendant.  At the conclusion of the hearing in this court we dismissed the appeal, and said that we would give our reasons later.
Pleadings.
2.	The claimant was born on 13^th April 1951, so she is now 53 years of age.  From April 1993 to the end of 1998 she was employed by the defendants, latterly as a night shift supervisor at their factory at Telford where they produced compact discs, cassettes, etc.  The claimant actually ceased work on the 15^th October 1998, and she was subsequently found to be suffering from a depressive disorder of moderate severity which rendered her unfit for work.
3.	In Particulars of Claim settled in 2000 the claimant asserted that her disorder and her loss of employment was caused by -
(1) The conduct towards her of a fellow employee, Chris Briggs, who was an engineer:
(2) The failure of the defendants to prevent that conduct, and
(3) The failure of the defendants to investigate and take action following the incidents which occurred on 13^th and 14^th October 1998.
  The third allegation was abandoned at the trial, so I say little more about it.
4.	The conduct complained of was said to amount to a breach of a term of the claimant’s contract of employment, which required the defendants not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.  That conduct (which was also said to amount to negligence on the part of the defendants), was particularised to some extent.  As to Briggs’ own behaviour it was said that -
(1) During the course of his employment from February or March 1998 Briggs was aggressive and abusive towards the claimant, as described in six witness statements made between May and July 1999 and scheduled to the Particulars of Claim:
(2) In particular on 13^th and 14^th October 1998 Briggs shouted and swore at the claimant and (on 14^th October) assaulted her by putting her in fear that she was about to be struck.
As to the behaviour of the defendants, it was said that they failed -
(1) To heed or act upon Briggs known tendency for aggression and abuse towards his colleagues (especially female colleagues):
(2) To heed or act upon the claimant’s complaints about his violent and abusive behaviour towards herself and others.  The claimant asserted that she had complained to her superior Mrs Mountford “on occasions too numerous to particularise” and specifically following the incident on 13^th October 1998.
(3) To discipline Briggs until after the incident on 14^th October 1998:
(4) To take any adequate steps to protect the claimant from Briggs, such as moving Briggs and/or the claimant to different shifts.
It was also contended that the claimant was wrongfully dismissed, having resigned in response to the breach of contract alleged.
5.	The defendants on 14^th September 2000 served a detailed Defence, in which they asserted that Briggs was responsible to the claimant, that he was liable to become upset if his work did not result in machines operating, and that he sometimes shouted and swore but primarily in anger at machines rather than at any individual.  It was further asserted that no one complained about Briggs after he had received an oral warning on 16^th March 1998 arising out of swearing and threatening behaviour towards Graham Boyle.  It was denied that the claimant made any relevant complaints to Mrs Mountford prior to an argument between the claimant and Briggs on 14^th October 1998, which arose out of problems with machines.  It was admitted that Briggs then swore at the claimant and acted in an unpleasant manner but it was denied that he acted in a threatening way.  In other words the allegation of an assault was denied.  The defence then dealt with the claimant’s complaints about what happened thereafter, and noted that when she consulted her General Practitioner on 16^th October 1998 she complained of sexual harassment, a complaint not made in her Particulars of Claim.  It was denied that the matters complained of caused the complainant to leave, and it was also denied that the situation was ever such that the claimant was foreseeably likely to suffer from psychiatric injury.  Constructive dismissal was denied.  It was asserted that the defendants were prepared to accommodate the claimant, as for example by moving Briggs to another shift, and it was further asserted that she had a number of independent reasons for leaving.  
6.	In a response to a request for further information dated 3^rd March 2001 the claimant gave details of her alleged complaints, and revealed that in December 1998 she had made a claim of sexual discrimination to an employment tribunal, apparently based upon the same facts, and that claim had been stayed pending the outcome of proceedings in the County Court.
7.	In a counter schedule in relation to the damages claimed, served by the defendants on 31^st July 2001, they maintained their denial of liability and began by asserting that the court had no jurisdiction to try the action, it being within the exclusive jurisdiction of the Employment Tribunal.
Hearing in May 2002.
8.	I have dealt with the pleadings at some length because they do help to explain what happened on 15^th May 2002 when the case was listed for trial before Judge Mitchell.  The defendants belatedly produced a skeleton argument which, among other things, explained for the first time what the jurisdictional issue was viz. that the claims amounted to claims for sex discrimination and wrongful termination which were the exclusive preserve of the employment tribunal.  The claimant’s allegation of constructive dismissal fell away when the judge ruled that she had not been dismissed, but the issue of jurisdiction needed to be pleaded to and, if necessary, resolved after hearing any relevant evidence, which could not all be dealt with at the May hearing.  There were also, as the judge noted, potential issues as to causation in relation to the alleged psychiatric injury.  Normally a jurisdictional issue would be dealt with first, but as the witnesses were at court it was agreed that they should be heard, and that the judge should then make what he described as “preliminary findings on the material facts and upon one discrete question on mixed fact and law”.  That question was whether on 14^th October 1998 the conduct of Briggs towards the claimant amounted to an assault.  The case was then to be adjourned to enable the parties to consider how the remaining issues should be dealt with.  Before us Mr Allan Gore QC for the appellant (who did not appear below) submitted that at least in retrospect it can be said that the procedure adopted was unfortunate because facts were found before the issues were crystallised, and it is at the heart of this appeal that the findings of fact were inadequate. In my judgment the course chosen by the judge was plainly a sensible course to adopt at a time when he had no reason to think that the claimant’s pleadings did not fully set out all of the issues which she wanted to raise.  Furthermore the procedure adopted was agreed, so it cannot be criticised in this court.
9.	The judge heard evidence over three days.  The claimant gave evidence herself, and called the other five witnesses whose statements had been scheduled to her Particulars of Claim.  She also called her daughter Emma.  The defendants called five witnesses – Briggs, Ian Teague (an engineer who was at work on 14^th October 1998), Elaine Mountford (Production Manager), Andrew Pope (Personnel Manager), and Alan Lewis (Production Director).  The judge then reserved his decision and gave judgment on 7^th June 2002.  I will return to that judgment when I consider the grounds of appeal, but for present purposes it is sufficient to say that the allegation of assault was rejected, and there is no ground of appeal which seeks to challenge that conclusion.
After the first judgment.
10.	After the judge had delivered his judgment in relation to the facts there was a substantial delay, attributable at least in part to a deterioration in the health of the claimant which required the appointment of a Litigation Friend.  The matter eventually came back before the judge on 29^th January 2003 when he directed, amongst other things, that there be served “an amended statement of claim or a concise statement of pleaded case on which the claimant seeks to rely”.  In paragraphs 4, 5 and 6 of his second judgment of 16^th October 2003 the judge explains the background to that direction. “By the time of the preliminary hearing the allegations of breach of primary duty had been relegated to second rank behind the contention that the defendants had vicarious responsibility for the alleged misdeeds of Briggs, principally the alleged assault”.  The allegation of assault failed as a result of the first judgment.  The claimant’s case was then refined.  “It became an allegation that the proven conduct of Briggs constituted the tort at common law of intentional infliction of injury upon the claimant and/or, in the alternative, what was described as ‘the statutory tort of harassment’ under the Protection from Harassment Act 1997.  In either or both those cases the defendants were to be held vicariously responsible for the tort of Briggs.  It continued to be alleged on the claimant’s behalf that the defendants were also in breach of primary duty to the claimant as their employee.”  Hence the need for an amended pleading.  What was produced went beyond what the judge had in mind, but nothing now turns on that.  As an alternative to the allegation of assault it was alleged in the amended Particulars of Claim served on 6^th March 2003 that Briggs subjected the claimant “to an incident of harassment and/or aggression in which he shouted, swore and gesticulated at her.”  It was also alleged that the defendants failed, or failed adequately, to “discipline, supervise and monitor Briggs until after the incident on 14^th October 1998”.  The claim for wrongful dismissal was also refined, it being asserted that the claimant’s resignation was in response to the defendants’ negligence and breach of implied terms in her contract of employment, the claimant asserting that “these matters were, at minimum, a substantial and operative cause of her resignation (though perhaps not the only cause)”.  The amended pleading contains more than a hint of an intention to seek to go over factual issues which had already been determined.
The second hearing.
11.	At the second hearing on 4^th September 2003 the judge declined to re-visit the factual evidence, but submissions were made on both sides and further information was obtained by telephone from the consultant psychiatrists.  A difficulty which was highlighted during the course of the hearing in this court was that the doctors had reported by reference to the claimant’s allegations rather than by reference to the findings of fact made by the judge.  In the light of my conclusions in relation to the first two issues raised at this appeal that difficulty does not have to be resolved in this case, but it is a difficulty which may need to be addressed in other cases.  Put bluntly there is no substitute for a medical report or reports which properly take account of the facts as found, even if that means that a further report or reports have to be obtained.
The second judgment.
12.	In a second reserved judgment delivered on 16^th October 2003 the judge recorded his refusal to re-visit his findings of fact, and addressed the surviving, new and amended heads of claim.  
13.	First, he considered the nature of the tort relied upon by the claimant when asserting that she had demonstrated an intentional infliction of injury.  There is no complaint in relation to the judge’s analysis of the law.  In paragraph 11 of the judgment he considered the application of that law to the facts.  Briggs did not intend to harm the claimant, and the judge found that such intention could not be imputed to him.
“His knowledge of the claimant and her character prior to these events was of a woman of strong character, not easily upset, a person who gave as good as she got when it came to the deployment of industrial language.  There having been no assault …. all that is left is a catalogue of rudeness and unfriendliness, behaviour not to be expected from grown-up colleagues in the workplace, but not behaviour so ‘calculated to infringe her legal right to personal safety’ that an intention to do so should be imputed to Briggs.”
14.	The judge then turned to the allegation of harassment, and set out the relevant provisions of the 1997 Act, namely sections 1, 3 and 7.  As to the course of conduct relied upon the judge quoted from the skeleton argument of counsel then appearing for the claimant which said -
“The course of conduct relied upon began in about February or March 1998 and continued until 14^th October 1998 with particular incidents on 13^th and 14^th October 1998.  The nature of the conduct was loud and aggressive swearing and abuse accompanied by gesticulating and finger pointing such as to cause the claimant distress, alarm, anxiety and psychiatric injury”.
The judge then said at paragraph 15 of his judgment -
“Whilst it is true that there had been past exchanges between Briggs and the claimant of the nature which I described in my preliminary findings, there is no evidence that Briggs’ outbursts were targeted at the claimant as opposed to anyone else or, indeed, to inanimate tools and equipment.  The fact that there were disputes between those two, Briggs and the claimant, on the nights of both 13^th and 14^th October does not make that the pursuit of a course of conduct towards the claimant.  Nor do I find that Briggs either knew or ought to have known that his ill-tempered outbursts might harass the claimant.  His concerns on these occasions were to give vent to his own frustrations, not to cause alarm or distress to others.  I do not find on the facts that the allegation of harassment of the claimant by Briggs is made out.”
The judge then went on to deal with foreseeability, which, in his opinion, the claimant had to establish whichever way the claim was put, and he added -
“In my judgment it would not be fair, just or reasonable to hold the defendants liable for such an act committed by an individual employee of which they had no knowledge or control either subjectively or objectively.”
That could be regarded as a rejection of the argument that the defendants would be vicariously liable for harassment by Briggs if such harassment were to be proved, and Mr Gore did so regard it, but in my judgment the judge was probably still dealing with the question of foreseeability, and did not specifically address the issue of vicarious liability.  Having regard to his findings that issue did not arise. 
15.	As to the alleged breach of primary duty the judge referred to Waters v Metropolitan Police Commissioner [2000] IRLR 720 and again there is no complaint about his formulation of the law.  He then said -
“The extent of the defendants’ antecedent knowledge is set out in my preliminary findings.  They had no knowledge that the claimant was either subject to victimisation or harassment by Briggs, which in fact I have found she was not, nor did they know that anything which Briggs might do might cause either physical or mental harm to the claimant.”
After that the judge turned to causation and apportionment, matters with which I do not find it necessary to deal.
Grounds of Appeal.
16.	At the start of his submissions to us Mr Gore made it clear that he would not be seeking to challenge the findings of the judge in relation to the allegation of assault or the allegation of intentional infliction of harm by Briggs on the claimant.  He would be concerned only with harassment, the primary duty of the defendants at common law, causation and, if necessary, jurisdiction.  Mr James Dingemans QC for the respondents, who like Mr Gore did not appear in the court below, said that the jurisdictional point was only taken in relation to allegations of breach of contract and sexual discrimination, so it is plainly not a live issue in relation to this appeal.
17.	In relation to harassment Mr Gore made two principal submissions -
(1) That if the judge had examined with sufficient care the evidence as to the conduct of Briggs prior to 14^th October 1998 he would have been driven to conclude that it amounted to the statutory tort, even if there was no proven intent to harm on the part of Briggs, and the claimant was not always involved.
(2) In the alternative, the conduct of Briggs towards the claimant on the evening of 14^th October 1998 amounted to the statutory tort, and once that was shown liability must follow, because in order to recover from her employers the claimant does not have to prove foreseeability, and vicarious liability on the part of the employers is inevitable unless Briggs was acting outside the scope of his employment – an issue not considered by the trial judge.
18.	In relation to primary negligence Mr Gore was again critical of the judge’s approach to events alleged to have occurred prior to 14^th October 1998.  He submitted that the judge made insufficient findings of fact to enable him to reach sustainable conclusions as to -
(1) Whether the defendants saw or ought to have foreseen that the behaviour of Briggs presented a risk of physical or mental harm to the claimant, and if so -
(2) Whether they responded adequately to that perceived risk.
Mr Gore accepted that causation can only arise if he succeeds in relation to harassment or primary negligence, and what he seeks is a fresh trial.
Harassment – The Law.
19.	Before I turn to the allegedly relevant evidence which the judge is said not to have addressed it seems to me to be desirable to attempt to resolve one or two uncertainties about the law, by considering what the claimant had to prove in order to establish harassment in this case.  The prohibition on harassment in section 1 of the 1997 Act is clear -
“(1) A person must not pursue a course of conduct -
(a) which amounts to harassment of another, and 
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”
So the conduct, which includes speech (section 7(4)), must be intentional and such as to harass some other individual (“the other”), but in deciding what the alleged offender knew or ought to have known at the relevant time the court applies, on the basis of information available to him, an objective standard.
20.	Harassment is not defined in the Act save that section 7(2) states -
“References to harassing a person include alarming a person or causing the person distress”
Misconduct on one occasion will not suffice, because section 7(3) provides -
“A ‘course of conduct’ must involve conduct on at least two occasions”
In my judgment that completely disposes of Mr Gore’s alternative submission that the conduct of Briggs towards the claimant on the evening of 14^th October 1998 could of itself satisfy the requirements of the statutory tort.  It also seems to me to be clear beyond argument that the same person must be the victim on each occasion when harassment is alleged to have occurred.  That is, in my judgment, clear from the words of the statute and is consistent with the decisions in Lau v DPP [2000] 1 FLR 799, Pratt v DPP [2001] 165 JP 800 and Daiichi Pharmaceuticals [2001] 1 WLR 1503 to which we were referred.  In Thomas v News Group Newspapers Ltd [2002] EMLR 78 Lord Phillips MR said at paragraph 30 -
“The Act does not attempt to define the type of conduct that is capable of constituting harassment.  ‘Harassment’ is, however, a word which has a meaning which is generally understood.  It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable.  The practice of stalking is a prime example of such conduct.”
Mr Gore submitted that the conduct did not have to be “calculated to produce the consequences” if that is understood to mean that the alleged offender must be shown to have intended to achieve the consequences.  I agree, but the words used by the Master of the Rolls seemed to me to mean no more than that the conduct must be such as is liable to produce those consequences.
Primary liability – The Law.
21.	For present purposes, and bearing in mind that there is no dispute as to the law which is relevant to this aspect of the case, I start with the passage from the speech of Lord Slynn in Waters which was cited by the trial judge -
“If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee.  It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and, if they do, that physical or mental harm may be caused to an individual.”
We were also invited to look at the judgment of Hale LJ in Sutherland v Hatton [2002] IRLR 263 where at paragraph 14 she gave this warning -
“If the standard of care expected of employers is set too high or the threshold of liability too low, there may also be unforeseen and unwelcome effects upon the employment market.  In particular, employers may be even more reluctant than they already are to take on people with a significant psychiatric history.”
Dealing with foreseeability Hale LJ said at paragraphs 23 and 25 -
“The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable ….. because of the very nature of psychiatric injury, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury …. All of this points to there being a single test: whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned.  Such a reaction will have two components: (1) An injury to health; which (2) is attributable to stress at work.  The answer to the foreseeability question will therefore depend upon the interrelationship between the particular characteristics of the employee concerned and the particular demands which the employer cast upon him.”
At paragraph 29 Hale LJ continued -
“Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job.”
The approach of Hale LJ was generally supported by the House of Lords in Barber v Somerset County Council [2004] 1 WLR 1089, in which at paragraph 65 Lord Walker said of her paragraph 29 that it is useful guidance “but it must be read as that, and not as having anything like statutory force.”
22.	In Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6 Scott Baker LJ, giving the judgment of the court, said at paragraph 2 -
“It is foreseeable injury flowing from the employer’s breach of duty that gives rise to the liability.  It does not follow that because a claimant suffers stress at work and that the employer is in some way in breach of duty in allowing that to occur that the claimant is able to establish claim in negligence.  As Simon Brown LJ put it in Garrett v Camden LBC [2001] EWCA Civ 395 paragraph 63: 
‘Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least some of their problems to the strains and stresses of their work situation: be it simply overworking, the tension of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take some examples.  Unless, however, there was a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and they ought properly to have averted there can be no liability.’ ” 
He then referred to Sutherland and Barber, before turning at paragraph 11 to Pratley v Surrey County Council [2004] ICR 159 where the judge found that the system of working imposed upon the claimant involved a foreseeable risk of injury to her in the long term, but not a foreseeable risk of imminent injury, so her claim failed, both at instance and in this court.  Mance LJ said at 173 E-
“There is a potentially relevant distinction between a risk of psychiatric injury arising from continuing overload in the future, and a risk of collapse in the short-term arising from disappointment of a ‘cherished idea’ developed as a result of a conversation about possible problems if there was continuing work overload over a further period.  The harm in each case is psychiatric injury, but not only does it occur by quite different mechanisms, more importantly it occurs at quite different times.  It follows that the judge was right to consider whether the risk of imminent collapse was foreseeable, which he held was not.”
So proof that the defendants foresaw or ought to have foreseen the particular type of injury suffered by the claimant as a possible consequence of the conduct complained of is a pre-requisite to a finding of liability.  As a further illustration of that proposition Mr Dingemans drew our attention to the opinion of Lord Reed in Rorrison v West Lothian College and another delivered in the Outer House of the Court of Session on 21^st July 1999.  The pursuer was a nurse who claimed that she suffered psychological injuries as a result of her treatment at work by two superiors, Andrews and Henning.  At page 10 of the transcript the judge said he could find nothing in the pleadings 
“which, if proved, could establish that Andrews and Henning ought to have foreseen that the pursuer was under a material risk of sustaining a psychiatric disorder in consequence of their behaviour towards her.  They might have foreseen that she would at times be unsatisfied, frustrated, embarrassed and upset, but that is a far cry from suffering a psychiatric disorder.  Many if not all employees are liable to suffer those emotions, and others mentioned in the present case such as stress, anxiety, loss of confidence and low mood.  To suffer such emotions from time to time, not least because of problems at work, is a normal part of human experience.  It is only if they are liable to be suffered to such a pathological degree as to constitute a psychiatric disorder that a duty of care to protect against them can arise; and that is not a reasonably foreseeable occurrence (reasonably foreseeable, that is to say by an ordinary bystander rather than by a psychiatrist) unless there is some specific reason to foresee it in a particular case.”
Return to the evidence.
23.	It follows that if the claimant is to succeed in relation to the statutory tort she must be able to show that there was evidence not properly considered by the judge that on some occasion before 14^th October 1998 Briggs directed conduct towards her which amounted to harassment in that it was liable to cause her alarm or distress and a reasonable person in possession of the information available to Briggs would so regard it.  
24.	As to the defendants primary duty at common law, the claimant can only succeed if she can show that there was evidence which was not properly considered by the judge that should have led him to conclude that prior to the evening of 14^th October 1998 the defendants foresaw or ought to have foreseen that Briggs might misbehave towards her in such a way as to cause her to suffer significant psychiatric injury, bearing in mind that there was no evidence that she was unusually vulnerable.
25.	I accept that at the time when he was deciding the facts in his first judgment the judge was not concerned with harassment because that had not then been alleged, and that he was principally concerned with the allegation of assault because that was in the forefront of the claimant’s case, but I do not accept that because of the physical nature of the alleged assault the judge overlooked the nature of the injury which the claimant did in fact sustain.  The allegation that the defendants failed to protect her from suffering that type of injury was pleaded from the outset.  
26.	What then is the evidence which the judge is said to have overlooked?  Plainly he examined the relationship between the claimant and Briggs.  He heard evidence from both of them, and from the other witnesses to whom I have already referred.  He assessed their personalities, which he rightly considered to be at the heart of the issues in this case.  He recorded what other people had said about the claimant - that she was tough, a woman of strong character, not likely to be upset by comments or offensive language, a woman who was known to give as good as she got.  Turning to Briggs, the judge again noted what the witnesses said - a capable engineer, a volatile character, someone who could often be frustrated with his work, but who had calmed down as the years went by, and the judge said -
“It was well known to the defendants’ managers that Mr Briggs frustrations, if he could not persuade his machines to work as they should, would be evinced by loud expletives and by the slamming down of tools and equipment.  There is no history of physical violence by Mr Briggs to anyone.”
The judge then referred to the occasion in March 1998 when Briggs was disciplined because of his behaviour in relation to an employee other than the claimant (an occasion to which I will return) and said that after that he was transferred to the CD packing department where the claimant was the supervisor on the night shift.  That brought them into contact when Briggs was working nights but, as the claimant said in evidence, that was only about four nights per month, and up to then there seems to have been no contact at all.
27.	The judge then examined how the relationship developed between March 1998 and October 1998, saying this -
“The claimant’s perception was that Briggs was extremely abusive to her almost from the start and, significantly, that he never directed his anger towards male colleagues.  She said that she had complained to Elaine Mountford on numerous occasions about the conduct of Mr Briggs.  Mrs Mountford denies that.  She says that the only complaints made to her by the claimant were with regard to the engineering abilities of Briggs rather than anything else.  I prefer the evidence of Mrs Mountford in that respect.
Mr Briggs described the position between himself and the claimant as being that they had had their moments but generally they could get by.  They had exchanged words before.  She would say that other engineers could fix the machine when he was having difficulties and would come and put pressure on him, referring to production figures and so forth.  He also said that the claimant’s language was, as he put it, ‘colourful to say the least’ and that she regularly swore at him using such words as ‘bloody’ or ‘fucking’.  Somewhat unchivalrously, Mr Briggs view was that if a woman swore at him he was entitled to respond in kind, notwithstanding her sex.  It does not seem that the relationship between the claimant and Mr Briggs can have been altogether inimical.  When the claimant went on holiday overseas in September 1998 she brought some tobacco back for Mr Briggs.  She said that she got on reasonably well with him when he was calm, and indeed she would describe him when he was calm as being quite pleasant.”
28.	I have read the statements made by the claimant and by Briggs as well as the transcript of their evidence, and I can find no reason to question that assessment made by the trial judge.  Plainly, if that assessment was right there was nothing prior to 13^th October 1998 which could possibly be described as harassment of the claimant by Briggs.  
29.	As to what happened on 13^th October 1998 the judge heard evidence, and said simply -
“On the night of 13^th October there were some exchanges which had taken place between the claimant and Briggs over the running of the machines.”
I agree that if the allegation of harassment had been pleaded before he delivered his first judgment the judge might have said a little more, but if one looks at the evidence in relation to 13^th October it can be seen that it was effectively summarised by the judge.  The claimant in her first statement said that Briggs was cursing, ranting and raving at the machine.  She suggested what might be causing the problem, and he then asked her very aggressively if she was trying to tell him his job.  There was another brief exchange, and she then rang her manager, Mrs Mountford.  In her second statement the claimant said that on that day she rang Mrs Mountford at home two or three times.
30.	When she gave evidence the claimant was challenged about the nature of her complaints to Mrs Mountford, whose evidence was that prior to 14^th October 1998 the claimant had only complained to her about Briggs’ skills as an engineer, not about him being abusive or aggressive, and furthermore that in an exchange of words the claimant was able to give as good as she got.
31.	Briggs accepted that he had exchanged words with the claimant prior to 14^th October 1998, usually when she chided him by saying that another engineer would have dealt with the problem more expeditiously, but nothing of any moment occurred prior to 14^th October 1998.
32.	At the end of her evidence the claimant was asked by the judge about her attitude to Briggs after she had spoken of bringing him tobacco and wanting him to behave better -
“Q. But up to 13^th October you were prepared to go on working with him?
A.  Yes. Well we only met like, four nights in a month because he was on alternate shifts where I was on permanent nights…
Q. And even after 13^th October, the night when you say all this took place, you would have gone on working if it had not been, you say, for Mr Lewis’s response in this meeting.
A. Hm yes.”
Mr Lewis was the Production Director who carried out an investigation on 15^th October.  In the passage quoted on one or both occasions the wrong date was being put to the witness.  It should have been 14^th October, but for present purposes that error is of no consequence.  The answers given by the witness make it absolutely clear that nothing occurred prior to 14^th October 1998 which could properly be described as harassment of the claimant by Briggs, and even if Briggs’ conduct on 14^th October could be so described the statutory tort was not proved because the misconduct amounting to harassment of the claimant did not occur on two occasions.
33.	I turn to the allegation of primary liability.  There was no evidence to suggest that prior to 14^th October 1998 the defendants knew or ought to have known that the claimant was in any way vulnerable, quite the reverse.  As I have already indicated she was clearly regarded as a strong forthright supervisor who gave as good as she got.  As to what the defendants knew or ought to have known about Briggs, complaint is made of the judge’s failure to deal specifically with some of the witnesses called on behalf of the claimant, so I have looked at what they said, both in their statements and in the witness box, and it really does not amount to much.
34.	Howard Shakespeare had been the Production Manager for the defendants, but then left suddenly in circumstances which gave rise to a dispute over compensation.  He asserted, apparently on the basis of what he was told by others, that Briggs was known for losing his temper, shouting and swearing at colleagues, mostly women, but when in a managerial position Shakespeare had never found it necessary to discipline Briggs.  He further asserted that in 1997 when it was proposed to re-employ Briggs two senior managers, Mrs Mountford and Mr Pope expressed concern.  Neither Mrs Mountford nor Mr Pope agreed with that.  Mrs Mountford said -
“I had mixed views.  I believe in giving people second chances and I do believe he was a good engineer, and from all accounts he had calmed and had changed.  I didn’t see any objection then to giving him a try.”
Adrienne Harvey spoke of Briggs being bad tempered in the mid 1980’s.
35.	Potentially of more significance was the fact that in March 1998, after he was re-engaged, Briggs was given a formal warning for swearing and threatening behaviour towards Graham Boyle, and told in the warning notice which was then issued that “another incidence of gross misconduct like this will result in dismissal”.  Graham Boyle was a manager who did some engineering, and, as explained by Andrew Pope when he gave evidence, there was a difference of opinion between Graham Boyle and Briggs as to what should be done in relation to a particular machine.  Briggs became verbally abusive.  Mr Pope was extensively cross-examined about what had happened prior to March 1998, and what was liable to happen thereafter.  From what he said in evidence it is clear that so far as he was aware there had been no previous problems, and, the warning having been given, he saw no reason to fear a repetition.  The trial judge dealt with the incident in March 1998 in his first judgment, so it was plainly in his mind when he dealt with primary liability in his second judgment.
36.	Margaret Goodman worked with the claimant until October 1998 and knew of Briggs being said to have a bad temper, but had only seen it happen once in 1984 when he lost his temper over a machine that had to be mended.  Then in August or September 1998 (so about one month prior to 14^th October) she was working on an unfamiliar machine and Briggs was doing some maintenance work on that machine.  He asked her to assist by putting her hand inside to remove a CD but because she had lost the tip of a finger putting her hand in a machine and because she was unfamiliar with the operation of this particular machine she refused.  He reacted angrily and there was an exchange of words, but, as Margaret Goodman said, she was not scared, and there is no suggestion that she reported the incident to anyone.
37.	Patricia Cook was employed by the defendants until August 1998.  In her statement she said that the claimant did not use bad language or verbally abuse others.  That was not the experience of her colleagues.  She also spoke of Briggs being bad tempered with machinery if he could not fix it.  There was no dispute about that, but Patricia Cook did not suggest that the bad temper was directed at anyone, even though on one occasion a leading hand Barbara Jones was upset by it and went home, with the result that Patricia Cook reported the incident to the day shift supervisor.
38.	In my judgment there was no evidence from which the judge could safely have concluded that prior to 14^th October 1998 the defendants ought to have foreseen significant injury to the mental health of the claimant as a possible consequence of misconduct in the form of aggressive behaviour by Briggs.  There was no reason to believe that so far as people were concerned Briggs would not heed the warning given to him in March 1998, so there was no reason for the defendants to do more to protect other employees, and even if a further eruption could have been foreseen there was no reason to believe that it would endanger the mental health of the claimant.  
Conclusion.
39.	For those reasons I am satisfied that the judge was right to decide as he did, and that this appeal must be dismissed.

Lord Justice Longmore:
40.	I agree.
Lord Justice Maurice Kay:
41.	I also agree.