OUTER HOUSE, COURT OF SESSION |
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A2051/01
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OPINION OF LORD BONOMY in the cause JOHN STEVENSON Pursuer; against EAST DUNBARTONSHIRE COUNCIL Defenders:
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Pursuer: Allardice; Thompsons
Defenders: Smith, Q.C.; Simpson & Marwick, W.S.
29 November 2002
"I write to confirm that my patient has suffered severe mental and physical stress due to the excessive hours he has been working.
As you know, Mr Stevenson lives 'on site' and very rarely gets any relief at all from his work. He and his wife now live in separate houses.
On 3 June 1994 I saw my patient and diagnosed stress. I advised complete rest. In fact I suggested that he remain off work for a month and I was willing to review the situation then. He felt after three weeks that he had to return to work due to 'pressure'.
While my patient was undergoing complete rest, he tells me that the door was constantly requiring to be answered. People were perhaps not unnaturally seeking his advice about various aspects of the running of Kilmardinny House.
I have great sympathy for this patient.
I would hope that you will be able to alleviate the situation for him."
The letter of 12 February 1996 stated inter alia:
"My patient has been severely stressed over the past couple of years. His job situation has been a very major cause of this stress ... his condition has persisted even since my letter of 1 November 1994 and he has required anti depressant medication of a fairly strong nature. I have great sympathy for Mr Stevenson who is (sic.) always been a very hard working gentleman. It would however seem that the job situation has been extremely detrimental to his health."
"Had said district been acting as reasonable and responsible employers they would by the receipt of said letter of November 1994, and in any event by receipt of the letter of 12 February 1996 at the latest, have realised that the pursuer's working conditions were such that a continuation of them exposed the pursuer to a material risk of suffering injury of the type and nature that he did in fact suffer."
His principal case is that steps should have been taken to reduce his hours of work, to prevent him from working unpaid overtime, and to reduce his contact with the public when he was not on duty. It is suggested that that could have been done by altering the letting arrangements for Kilmardinny House and engaging a relief caretaker.
"[25] ... the answer to the foreseeability question will therefore depend upon the inter-relationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him ... a number of factors are likely to be relevant.
[26] These include the nature and extent of the work being done by the employee ... it will be easier to be conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable. ...
[27] More important are the signs from the employee himself. Here again, it is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually lead to damage to health. Walker's case is an obvious illustration: Mr Walker was a highly conscientious and seriously overworked manager of a social work area office with a heavy and emotionally demanding case load of child abuse cases. Yet although he complained and asked for help and for extra leave, the judge held that his first mental breakdown was not foreseeable. There was, however, liability when he returned to work with a promise of extra help which did not materialise and experienced a second breakdown only a few months later. If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental and physical health, then the employer will have to think what can be done about it.
[28] Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee's work or from complaints made about it by the employee or from warnings given by the employee or others around him."