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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Barber v. Somerset County Council [2004] UKHL 13 (1 April 2004)
URL: http://www.bailii.org/uk/cases/UKHL/2004/13.html
Cite as: [2004] IRLR 475, [2004] WLR 1089, [2004] ICR 457, [2004] ELR 199, (2004) 77 BMLR 219, [2004] PIQR P31, [2004] 2 All ER 385, [2004] UKHL 13, [2004] 1 WLR 1089

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JISCBAILII_CASE_TORT

Judgments - Barber (Appellant) v. Somerset County Council (Respondents)

HOUSE OF LORDS

SESSION 2003-04
[2004] UKHL 13
on appeal from: [2002] EWCA Civ 76 (5 February, 2002)

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Barber (Appellant) v. Somerset County Council (Respondents)

[2004] UKHL 13

LORD BINGHAM OF CORNHILL

My Lords,

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I am in full agreement with it, and for these reasons would allow the appeal and make the order which he proposes.

LORD STEYN

My Lords,

I have had the privilege of reading the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it. I too would make the order which he proposes.

LORD SCOTT OF FOSCOTE

My Lords,

The issue in this case is whether the Somerset County Council, who employed Mr Barber as a teacher at their East Bridgwater Community School, are liable to him in damages for the mental breakdown he suffered brought about by the pressures and stresses of his workload. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Walker of Gestingthorpe and gratefully adopt his exposition of the relevant facts and the history of this litigation.

As Lord Walker has explained the Court of Appeal heard four conjoined appeals of which Mr Barber's case was one. In each case a defendant employer appealed against a finding of liability for an employee's psychiatric illness caused by stress at work. Two of the employees were teachers in public sector comprehensive schools — Mr Barber was one of them. Another of the employees was an administrative assistant at a local authority training centre. The fourth was a raw materials operative in a factory. The Court of Appeal heard the four cases together in order to try and provide guidance as to the principles that should be applied to cases where an employee's complaint about the system of work provided by his employer and under which he had had to work was not that the system had subjected him to some degree of unnecessary and unreasonable physical danger but that it had subjected him to a degree of mental stress carrying the risk of psychiatric illness.

The judgment of the Court of Appeal was given by Hale LJ. In my respectful opinion her judgment succeeded in succinctly and accurately expressing the principles that ought to be applied. Lord Walker has cited paragraph 29 of her judgment but has preferred, as a statement of general principle, the statement of Swanwick J in Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776. My Lords, my own preference is the other way round. Swanwick J did not have in mind the problems of psychiatric illness caused by stress. In Stokes the employee had been exposed at work over a long period to mineral oil which, on a daily basis, had saturated his clothing and come into contact with his skin. As a result of this he developed cancer of the scrotum from which he eventually died. The question was whether there were steps or precautions that the employers ought to have taken to protect Mr Stokes from the risk of contracting the disease (see pages 1782/3). The question, in short, was whether his employers were providing for him a reasonably safe system of work.

An appreciation of the existence of physical dangers of the sort that Mr Stokes, unbeknownst to himself, was facing is dependent on scientific and medical knowledge. The factory doctor at the factory where Mr Stokes worked had known of the risk of scrotal cancer, had failed to draw the workforce's attention to the risk and had failed to institute periodic medical examinations of workers exposed to the risk. Swanwick J held that those failures constituted negligence. The contrast with psychiatric illnesses caused by stress is obvious. Take Mr Barber's case. The school authorities could only know what Mr Barber told them. This was the point Hale LJ was making in the passages in italics in her paragraphs 29 and 30:

Mr Langstaff QC, counsel for Mr Barber, protested that this approach was placing the onus on the employee to alert the employer. He is quite right. Such an approach would probably be unwarranted if the complaint was of a system of work which exposed the employee, or others, to a physical danger. An employer ought to take steps to understand the implications for the physical safety of his employees of the system of work he is imposing on them. But how can this approach be right where stress caused by a heavy workload is concerned? Most employees can cope. A few may have problems in coping. Only a tiny fraction of them will be at risk of psychiatric illness. And how can the employer even start to consider whether any special steps need to be taken unless the employee keeps the employer informed about his problems? Swanwick J was dealing with a completely different problem. Hale LJ was providing guidance as to the approach to a new problem.

In paragraph 43 of her judgment Hale LJ formulated a number of "practical propositions" applicable to cases where complaint is made of psychiatric illness brought about by stress at work. All are valuable but some are particularly pertinent to this case—

Hale LJ applied these propositions to the primary facts of the Barber case, as found by the trial judge, and expressed her disagreement with the trial judge's conclusions. She did so in paragraphs 57 to 59 of her judgment (cited at paragraph 66 of Lord Walker's opinion). The trial judge, of course, did not have the advantage of Hale LJ's paragraph 43 guidance. If he had, I do not think he would have said, as he did in paragraph 42 of his judgment, that the "crucial question" was

He would have appreciated that the crucial questions were, first, whether Mr Barber's breakdown in November 1996, caused, as the judge held, by his heavy workload and responsibilities, was reasonably foreseeable by the school authorities (see Hale LJ's propositions (2), (3), (5), (6) and (7) in her paragraph 43); and, second, whether there were steps that the school authorities could, and should, have taken to prevent the breakdown (see Hale LJ's propositions (9), (12) and (13)).

It may be that if the judge had had the advantage of the guidance provided by Hale LJ he would still have concluded that Mr Barber's breakdown was indeed reasonably foreseeable and that there were steps that the school authorities could, and should, have taken that would have prevented the breakdown. A fair reading of his judgment suggests the probability that he would have come to these conclusions. The Council would have appealed. Would it have been open to the Court of Appeal to disagree with the trial judge's conclusions?

It is at this point that, to my regret, I find myself in disagreement with a majority of your Lordships. Your Lordships are all agreed in approving the statements of legal principle and the practical guidance to be found in the judgment of Hale LJ. But your Lordships disagree with Hale LJ's reversal of the trial judge's conclusions. As Lord Walker puts it, in para 67 "…. there was insufficient reason for the Court of Appeal to set aside [the trial judge's] finding" that Mr Barber's employer was in breach of duty; and, in para 70, "The judge was entitled to form the view that the school's senior management team were in a position of continuing breach of the employer's duty of care …". My noble and learned friend Lord Rodger of Earlsferry expresses himself in similar terms:

My Lords the question, in my respectful opinion, is not whether the trial judge "was entitled" on the material before him to come to the conclusions he came to. The question is whether his conclusions were correct. The Court of Appeal thought they were not. A statement that the trial judge was entitled to come to the conclusions leaves that question unanswered. The conclusions are judgmental. They are not findings of primary fact; they are not conclusions as to how some judicial discretion should be exercised. They constitute the judgment of the trial judge based upon his findings of primary fact. Why cannot the Court of Appeal substitute their own judgment if it thinks the trial judge's judgment was wrong? The Court of Appeal's function in hearing Mr Barber's appeal, and the other three appeals, was to review the conclusions of the trial judge. CPR 52.11(1) says, subject to some exceptions not here relevant, that

A "review" surely entitles the appeal court in a case such as this to consider the standard of care that the trial judge has held the defendant should have observed and, if it thinks the standard to be too strict, or not strict enough, to substitute its own standard. That is what the Court of Appeal did in the present case.

After the primary facts have been found and proper directions as to the legal principles to be applied have been given, the decision as to whether a defendant was in breach of the duty of care owed to the claimant has still to be taken and will in every case depend on the standard of care that is thought requisite. This is so in the simplest of cases. Take the case where a pedestrian has stepped off the pavement and been hit by a car. The car was travelling at 25 mph and the motorist could have foreseen the possibility that the pedestrian might step into the road but did not do so. What standard of care is to be required of the motorist? The trial judge may conclude that the speed of 25 mph, in view of the traffic conditions and the likelihood of jaywalkers, was excessive and, accordingly, hold the motorist to be in breach of his duty of care. An appeal court, conducting a review, and accepting all the primary findings of fact, may take the view that the trial judge set too high a standard of care and that the motorist should not have been held to be in breach of his duty of care. It is, I repeat, a legitimate and important function of the Court of Appeal in negligence cases to review the standard of care set by the decisions of the lower courts and to correct the lower courts' rulings if it thinks them to be wrong.

The critical issue in the present case relates to the standard of care required to be observed by school authorities in relation to teachers who they have reason to know, or believe, are having difficulty in coping with their heavy workload and are consequently suffering from some degree of stress. The trial judge thought that the school authorities, given what they knew about Mr Barber's problems in the 1996 summer term, should have relieved him of some of his workload and responsibilities in the autumn term. That would be setting a high standard of care. Mr Barber was an experienced teacher who had, in the summer term, taken three weeks off work after seeing his doctor who had diagnosed stress and depression. The decision to see his doctor was a decision that he, himself, was able to take. He then followed his doctor's advice. Again, that was his, Mr Barber's, decision. It was one he was able to take. It might have been expected that, in the autumn term, if again he found himself unable to cope, he would have followed the same course. But the trial judge thought that the school authorities, because they knew of his problems in the previous term, and although he had not given them any indication that his problems were continuing and increasing, owed him a duty that required them to relieve him of some of his workload in the autumn term. Hale LJ, however, thought that that was setting too high a standard of care

In my opinion, the correction by Hale LJ of the standard set by the judge was justifiable and should be upheld by the House. Schools operate under considerable difficulties. I do not suppose there are many, if any, teachers whose workload does not place them under considerable continuous pressure apt to cause stress and sometimes depression. The same, I suspect, would apply to many professional employees. Nurses and doctors working in the NHS are an obvious example. Employed lawyers working in busy city firms are probably another. Pressure and stress are part of the system of work under which they carry out their daily duties. But they are all adults. They choose their profession. They can, and sometimes do, complain about it to their employers. In underfunded institutions providing vital social services there is often very little that the employers can do about stress problems. Colleagues in the school, or hospital, are likely to be carrying an equally heavy workload. Is it fair to ask them to assume a greater burden in order to relieve the stress on a particular teacher? Can the school afford to ask for a supply teacher? As a last resort the school may have to do so. But the school is entitled to expect, first, to be kept fully informed by the teacher in question of his or her problems. Mr Barber communicated nothing to his school authorities in the two months of the autumn term that preceded his breakdown. The school is entitled to expect, also, that the teacher, an adult, will take his own decisions as to whether he needs to consult his doctor and will, if so advised by his doctor, take time off. Mr Barber had done so in the summer term. These comments of mine do no more than express in different words what Hale LJ said in paragraphs 58 and 59 of her judgment in explaining why she disagreed with the conclusions of the trial judge.

In my opinion, the trial judge set the standard of care required of Mr Barber's school authorities at too high a level and Hale LJ adjusted the standard to a proper, more realistic, level. The standard set by the trial judge was too demanding. She was entitled on a review of his decision to reverse him. Your Lordships may, in disagreement with the standard set by her and in agreement with the standard set by the judge, restore his order. But, for my part, I think the standard set by Hale LJ was a realistic recognition of the particular difficulties posed by complaints by teachers of psychiatric illness caused by heavy workload and consequent stress. I would dismiss this appeal. I would add only that, having had the advantage of reading in advance the opinion of my noble and learned friend Lord Rodger of Earlsferry, I agree with everything he has said save his conclusion that the appeal should be allowed.

LORD RODGER OF EARLSFERRY

My Lords,

As my noble and learned friend, Lord Walker of Gestingthorpe, has explained, at the hearing before your Lordships the main emphasis in the submissions of counsel was on the facts of this particular case. More precisely, counsel addressed the question whether, on the evidence, Judge Roach had been entitled to hold that the school authorities ought to have foreseen that, if he continued with his existing workload, Mr Barber was liable to develop a mental illness. The Court of Appeal considered the same question and, having read the transcript of the evidence for themselves, they concluded that it was expecting far too much to expect the school authorities to pick up the fact that Mr Barber's problems were continuing in the autumn term of 1996, when he had not gone to Mr Gill at the beginning of the term and told him that things had not improved over the holidays. I have considerable sympathy with that view. Having carefully considered the analysis of the evidence in Lord Walker's speech, however, I am satisfied that there was material on which the judge was entitled to take the opposite view. Counsel for Somerset County Council ("the Council") did not suggest that he had applied the wrong test. In these circumstances I am unable to say that the judge, who had enjoyed the advantages, "sometimes broad and sometimes subtle", of seeing and hearing the witnesses, was "plainly wrong": Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 37 per Lord Shaw of Dunfermline, quoted with approval by Lord Thankerton in Thomas v Thomas [1947] AC 484, 488. It follows that the Court of Appeal should not have disturbed the judge's conclusion that the school authorities ought to have foreseen that Mr Barber's mental health would be impaired if he continued to work the same hours as he had been working since September 1995.

It is apparent from the pleadings, and from counsel's closing skeleton argument for the Council in the county court, that the parties went into battle on a number of issues: in particular the foreseeability of Mr Barber developing a mental illness, as opposed to suffering from stress, the causes of his illness and the measure of damages. The judge resolved all these issues in Mr Barber's favour. The content of the employers' duty of care does not appear to have been addressed as a specific topic.

The employer's duty is to take reasonable care to avoid injuring his employee's health. Therefore, as the Court of Appeal stressed, even where a court finds that such injury was foreseeable, it must go on to consider what steps the employer could be reasonably be expected to take once he was aware of that risk and whether they would have been effective: [2002] 2 All ER 1, 15-16, paras 33 and 34.

In his pleadings Mr Barber simply alleged that the Council "failed to provide the plaintiff with proper help and assistance" which the Council, equally simply, denied. There is nothing to suggest that at the trial the parties explored the nature of the help and assistance which the Council were said to be under a duty to provide. Against that background it is perhaps not surprising that, having expressed the view that a prudent employer would have investigated his employee's situation "to see how his difficulties might be improved", the judge went on to say that "the prudent approach would have been to investigate [the possible risks to Mr Barber's health] and provide assistance if only in the short term." He then concluded:

This conclusion is not a proper basis for holding the Council liable in damages to Mr Barber. The judge assumes that either the failure to investigate or the failure to provide at least temporary assistance led to Mr Barber's breakdown in November 1996. But any failure to investigate would not have had a bearing on the onset of Mr Barber's illness unless the Council would have been under a duty to take steps that would actually have alleviated the situation and so prevented the illness. Unfortunately, the judge does not explain what "assistance" the Council were under a duty to provide or for how long. Nor does he explain why he thinks that "temporary assistance" would have prevented the illness in November 1996 or after the assistance was withdrawn, when evidence that he accepts indicates that the three weeks' absence on sick leave in May did not effect a cure.

Although the amount of the damages to be awarded is now agreed, it is worth noticing that in assessing them the judge appears to have envisaged that the "temporary" assistance to Mr Barber might have been quite long-lasting. The Council argued that the damages should be reduced to take account of the possibility that Mr Barber would not have continued as a teacher because of his disenchantment with the profession. The judge rejected this argument, saying:

Here the judge seems to assume that assistance to alleviate Mr Barber's workload would have been provided on a basis that would have meant that, for the rest of his career, Mr Barber would not have been under the same pressures as in 1996.

My Lords, for my part, I find the judge's conclusions on this crucial part of the case very far from satisfactory. Indeed, were it not for the fact that the Council do not really seem to have fought the case on this issue, I would have been disposed to dismiss the appeal on the basis that Mr Barber had failed to prove that, if the Council had taken reasonable care, he would not have developed the illness. But, in the absence of any significant evidence on behalf of the Council dealing with this issue and in the absence of any direct challenge by them, they cannot complain if the most favourable inferences of which it is reasonably capable are drawn from the evidence led on behalf of Mr Barber: Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768, 775 per Lord Reid. So, on balance, I would not disturb the judge's finding on the point.

Lord Walker has spelled out in more detail the nature of the assistance which he envisages the Council would have been under a duty to provide. The senior management team should have taken the initiative in making sympathetic inquiries about Mr Barber when he returned to work and in "making some reduction in his workload to ease his return". Even a small reduction in his duties, coupled with the feeling that the senior management team was on his side, might have made a real difference. If his condition did not improve, some more drastic action would have had to be taken. Employing a supply teacher would have been one possible remedy and preferable to the permanent loss through psychiatric illness of a valued member of the school staff. I must explain briefly why I do not feel able to go as far as Lord Walker in identifying what the Council should have done in this case.

The arguments of counsel before the House took account of certain aspects of the wider context in which any common law duty of care would operate. In particular, reference was made to the health and safety legislation and to the relevant code of practice as well as to the guidelines on the effects of stress at work. On the other hand much less attention was paid to the contract(s) between the Council and Mr Barber. It is frequently said that, as between the parties to a contract, any duty of care in tort can be equated with an implied contractual term to the same effect. So in a case involving a teacher, the conditions of employment of teachers of the relevant grade are relevant. Teachers' pay and conditions are the product of national negotiations between representatives of the education authorities and the teachers' unions. Government education and funding policies form the backdrop to these negotiations which result in a complex set of terms and conditions. During the hearing your Lordships were supplied with a copy of those that applied in 1996. In determining the content of any duty of care that the Council owed to Mr Barber, it would be necessary to have due regard to the relevant provisions of his contract with them, embodying these terms and conditions.

In fact, in his case there was a contract governing his position as Mathematical Area of Experience Co-Ordinator ("mathematics co-ordinator") and another contract governing his position as Project Manager responsible for publicity and media relations. In 1995 Mr Barber's salary in his new position as mathematics co-ordinator was to be less than his previous salary as head of department before restructuring and he took on the additional post as project manager in order to try to maintain his income. It was the combined workload of these two positions that Mr Barber found intolerable.

Mr Barber's problem arose from doing the work which he had contracted to do and for which the County Council paid him under his contracts. Moreover, the judge was not satisfied that this pressure of work "in itself" placed him at a materially higher risk of mental illness than another teacher working in a comparable position with a heavy workload. In other words, the demands placed on Mr Barber were not excessive in themselves, but only excessive in the case of Mr Barber because of some factor in his own personality or some condition that made him more vulnerable to developing a mental illness as a result of the stress involved in his work. There is therefore no question of the Council having reduced staffing to such a level as to put all their teachers at risk of developing a mental illness. Such a case would raise very different issues. Rather, the question is: what steps did the Council have to take when, by reason of some individual vulnerability, Mr Barber was liable to suffer material injury to his (mental) health if he carried out the duties which were stipulated in his contract(s) and for which he was paid his salary?

As the Court of Appeal point out, it is really impossible to begin to answer that question without first knowing what steps might have been effective to safeguard Mr Barber's health. But the judge made no finding as to whether Mr Barber would have fully recovered his health and been able to tackle his entire workload if he had been given some (particular kind of) assistance for a (short) time. This would have required expert psychiatric evidence. In the absence of such evidence, one might incline to the view that, since Mr Barber was soon unable to cope when the autumn term began after the summer holidays, he would have been equally unable to cope when he returned to his full duties after some period of lighter work. If so, temporary assistance would not have provided an effective solution. At most, it would have postponed the start of his illness.

On the judge's findings the school authorities were faced with a situation where Mr Barber was unfit, through no fault of his or theirs, to carry out the duties which he had agreed to perform. In his particular case, one possible way of alleviating the problems might have been for him to give up his position as project manager and concentrate on his work as mathematics co-ordinator. Again, there is nothing in the judge's findings in fact to show whether that step would have relieved the pressure on him sufficiently to allow him to carry on with his duties as mathematics co-ordinator without any risk to his health. Nor is there anything to suggest that Mr Barber ever contemplated taking that step - which would, of course, have meant a reduction in his total salary.

Mr Barber might well have resisted any suggestion that he should give up his work as project manager and take a corresponding reduction in salary. And there must be situations where, just as an adult cannot be required to undergo medical treatment against his will, he is entitled to continue working at high pressure, even though he runs the risk of damaging his health, whether mental or physical. For example, a university teacher employed to do research can surely choose to work all hours of the day and night, at possible or even obvious risk to his health, in the hope of making a breakthrough in deciphering an ancient language or unravelling some secret in genetics. The university authorities can hardly be under any duty to do more than warn of the possible dangers: they cannot be obliged to lock away the photographs of the texts or bar the laboratory doors to prevent him from working into the night. Not only would that be to interfere with his right to carry out his duty of research under his contract: it would risk depriving the world of the benefits of his discovery.

Most people are not engaged in work of that kind. It could be said that, in other cases, where an employee is liable to develop some illness if he carries out the job which he is employed to do, the employer owes him a duty of care not to continue to employ him to perform that job. That might be one possible view in a case like Mr Barber's. But such a duty would have to mesh with the provisions of the relevant employment contract regulating sickness absences and ill-health retirement. More importantly, at least where the risk is small, the common law has taken the view that the employee can decide whether to run it. Devlin LJ explained the position in a well-known passage in Withers v Perry Chain Co Ltd [1961] 1 WLR 1314, 1320. An employee had chosen to go on working even though there was a risk that she would develop dermatitis. Devlin LJ said:

Paris v Stepney Borough Council

I do not pause to consider how far, if at all, the reasoning in this passage is affected by the current requirements on employers to carry out risk assessments, but I draw particular attention to Devlin LJ's view that the employer is under no common law obligation to offer alternative safe employment. That is, in effect, the obligation which Mr Barber would impose on the County Council - not in the sense of finding him a job in some other part of the school, but in the sense of changing his job by supplying assistance that would reduce his workload and make it safe for him to carry on as mathematics co-ordinator and project manager at the same pay. In contract terms, that amounts to saying that his job specification should be changed and the employers' obligations under the contract correspondingly increased in these circumstances.

In support of a duty of care of that kind Mr Langstaff QC relied on Walker v Northumberland County Council [1995] 1 All ER 737, a decision that has often been cited in subsequent cases on mental illness caused by stress at work. In that case the plaintiff, a social worker, had suffered a mental breakdown when he was driven to the point of despair by the council's failure to provide him with what he considered to be sufficient resources to satisfy the urgent needs of the people, and particularly the children, of his area for social services. He returned to work on the basis that he would be provided with assistance but, due to additional demands on the social services in the area, it did not materialise. Colman J held, at p 760a - b, that the standard of care to be expected of a reasonable local authority required that "additional assistance should be provided, if not on a permanent basis, at least until restructuring of the social services had been effected and the workload on Mr Walker thereby permanently reduced." The assistance should have been provided "notwithstanding that it could be expected to have some disruptive effect on the council's provision of services to the public." The decision is distinguishable, but what matters is the view that an employer can be under a duty of care to provide an employee with assistance, of uncertain scope and duration, to enable him to perform his contractual duties.

That view also lies at the heart of the judge's perception of the Council's duty of care in this case. Mr Barber would be at work, drawing his normal pay, but doing less than his contractual duties - the Council being obliged to provide him with assistance to top up the deficit. It is easy to see that, in practice, colleagues would often rally round to help a teacher when he returned after being off sick. And they might well do so at other times when they felt that, perhaps because of a family illness, a colleague was going through a difficult patch. No doubt, a head teacher would try to create an atmosphere that would be conducive to such mutual assistance. But it is rather a different thing to say that the Council's duty of reasonable care to an employee requires them to provide him with assistance for an indefinite period even to the extent of employing a supply teacher so that he can do the amount of work he can cope with, but less than the amount for which he is being paid in terms of his contract. The difficulty of framing an implied term to that effect and reading it into a contract of employment is obvious. I refer generally to the instructive discussion of implied terms relating to working hours in the opinion of Sir Nicolas Browne-Wilkinson V-C in Johnstone v Bloomsbury Health Authority [1991] ICR 269.

Contracts of employment will often have provisions dealing with the employee's sickness. If an employee is off work because of illness, he will be entitled to statutory sick pay at a particular rate. Whether or not the employee is entitled to more under his contract of employment, the employer will be able to recover the statutory sick pay element from the Department of Social Security. While the employee is off sick, his colleagues may be asked to provide cover for him, but this puts extra pressure on them and, in the case of teachers, the terms of their contracts strictly limit the time for which they can be required to do this. Beyond that, the school authorities will have to try to find a suitable supply teacher. The cost of employing the supply teacher will be offset, to a certain extent, by the reduction in the cost of employing the sick teacher. By contrast, teachers' contracts do not oblige them to provide cover for a colleague who is present but not doing his full workload. The school authorities would have to bear the entire cost of any supply teacher. Not surprisingly, the assumption underlying the conditions of contract appears to be that the authorities can expect teachers, who are not off sick, to carry out their contractual duties. Pupils and their parents also might think that the person chosen and employed as best fitted to lead the mathematics team would be able to do the job and not have to hive off part of it to someone else who had not been selected for the post.

The contract of employment will usually regulate what is to happen if an employee becomes unable, due to illness or injury, to carry out his duties. There may be provision for a defined period on full pay, followed by a further defined period on reduced pay, followed by termination of the contract. At the end of the process the employer is free to make new arrangements. While the timetable is likely to be definite, the exact legal analysis of the employee's position when off work under such provisions is by no means free from difficulty. Whatever the position, however, the introduction of a tortious duty of reasonable care on the employer to provide assistance so that the employee can return to work and draw his normal pay, but do less than his full duties for an indefinite period, does not sit easily with such contractual arrangements. Nor does it seem likely to promote efficiency within the enterprise or department.

When the contractual position, including the implied duty of trust and confidence, is explored fully along with the relevant statutory framework, your Lordships may be able to give appropriate content to the duty of reasonable care upon which employees, such as Mr Barber, seek to rely. But the interrelationship of any such tortious duty with the parties' duties under the contract of employment has not been examined in any depth in the cases to which we were referred and was not analysed in this appeal. For that reason I would not wish to express any view on the content of the Council's duty of care in this case.

Subject to these observations, I respectfully agree that, for the reasons Lord Walker gives, the appeal should be allowed.

LORD WALKER OF GESTINGTHORPE

My Lords,

Mr Alan Barber (the claimant at first instance and the appellant in this House) was a schoolteacher. He took early retirement at the end of March 1997 (when he was 52 years old) after suffering a mental breakdown at school in November 1996. Since then he has been unable to work as a teacher, or to do any work other than undemanding part-time work. He sued his employer, the Somerset County Council, for damages for personal injuries (principally in the form of serious depressive illness). His claim was heard in the Exeter County Court by Judge Roach, who gave judgment in his favour on 8 March 2001. Mr Barber was awarded general and special damages amounting to just over £101,000, including interest, with costs.

The County Council appealed to the Court of Appeal which heard the appeal together with three other appeals. They were all appeals by employers against awards made to employees for psychiatric illness caused by stress at work. On 5 February 2002 the Court of Appeal allowed three of the appeals (including the County Council's appeal against Mr Barber) in a composite judgment reported as Hatton v Sutherland [2002] EWCA Civ 76; [2002] 2 All ER 1; [2002] ICR 613. The Court of Appeal held that the County Council had not been in breach of their duty as an employer. It also held that in any event the judge should have calculated Mr Barber's loss of future earnings on a lower multiplier because of the chance that, if he had continued with a similar teaching job, his health might have broken down in the same way. Mr Barber appeals to this House with leave granted by an Appeal Committee (but does not challenge the Court of Appeal's reduction of the multiplier). There has been no further appeal in any of the other three cases.

As the argument before your Lordships developed, it became apparent that the area of dispute between the parties was quite limited. Mr Barber did not challenge, except on peripheral points and matters of emphasis, the principles of law set out in the judgment of the Court of Appeal (delivered by Hale LJ). The County Council, while not uncritical of the judge's judgment, did not challenge any of his findings of primary fact. In the event the main issue for your Lordships is whether the Court of Appeal was right to conclude, as it did, that the evidence before the judge did not, even taken at its highest, sustain a finding that the County Council were in breach of the duty of care which they owed, as employer, to Mr Barber. It is therefore necessary to go into the facts in some detail.

Mr Barber trained as a teacher in London, specialising in mathematics and physical education. After qualifying in 1970 he moved out of London, and between 1971 and 1984 he held teaching posts at two different schools in Wiltshire. He married in 1972 and had three children, all now adult. His wife left him in 1989 and they were divorced in 1990, but the divorce was not acrimonious.

In 1983 Mr Barber applied successfully for the post of Head of the Mathematics Department at the East Bridgwater Community School (then called Sydenham Comprehensive School). He started in his new post in January 1984. The school was then facing serious problems, which seem to have got worse rather than better during Mr Barber's time at the school. Its catchment area contained many disadvantaged families. The school roll was dropping from a high point of over 1,000. It eventually reached less than half that number. This had a direct effect on the school budget, including the amount available for teachers' salaries. Nevertheless Mr Barber saw his new job as a challenge. The judge recorded that it was common ground that Mr Barber was regarded by those with whom he worked as a dedicated and conscientious teacher. The judge also described Mr Barber as diligent and industrious.

In consequence of the falling school roll there was in 1995 a restructuring of staffing at the school. The posts of heads and deputy heads of department were abolished and Mr Barber reapplied for the post of "Mathematical Area of Experience Co-ordinator". His two deputies (two highly-regarded women teachers) lost their status as his deputies and (while continuing to teach mathematics) were required to take on new and demanding pastoral duties. Mr Barber was told that in order to maintain his salary level he would have to take on further responsibilities. He was interested in taking on an environmental project, but instead was invited to apply to be Project Manager for public and media relations, and he was appointed to that position. Public and media relations were regarded as important by the school's senior management team, because of the need to improve the school's reputation (and so increase its enrolment). All these changes took effect at the beginning of the autumn term in September 1995.

It is common ground that Mr Barber worked long hours in discharging his new responsibilities. He regularly came back into school to work on weekday evenings. He had always done some school work at weekends, but the weekend hours lengthened. He estimated that he was working between 61 and 70 hours a week. Under the terms set out in the School Teachers' Pay and Conditions Document 1996 (and it was not suggested that the earlier version was materially different) a full-time teacher has one very specific obligation (that is, to be available for work on 195 days in any school year, 190 days being teaching days, for a total of 1,265 hours) and one much more general and open-ended obligation, in that para 40.7 provides that a full-time teacher shall

The judge's findings about Mr Barber's workload were as follows:

Mr Barber was not the only teacher who found school life stressful after the restructuring. Even before 1995, there were tensions between the school's senior management team (that is the head teacher and her two deputies) and other members of the staff. The judge recorded that Mr Barber was not the only teacher who gave evidence about the "autocratic and bullying style of leadership" of the head teacher, Mrs Hayward.

Towards the end of 1995 Mr Barber was beginning to feel the strain. Your Lordships were urged by Mr Collender QC (for the County Council) to distinguish clearly between what Mr Barber himself thought or felt about his state of health at different times during the last year of his teaching career, and what he communicated about it to his employer (in the persons of the senior management team at the school, or officials of the County Council's Education Department based at Taunton or Street). I readily accept that that is a point of great importance to the disposal of this appeal. At the beginning of the autumn term in 1995 the County Council had no reason to think that there was any particular problem with Mr Barber. The documentary evidence shows that he was sometimes mildly criticised for being slow to make up his mind, and sometimes regarded as reluctant to cooperate in managing change. But these were minor matters. In general he was regarded as a mature, skilled and conscientious teacher with no problems other than those which he shared with all his hard-pressed colleagues. In March 1995 Mr Gill (one of the deputy heads) had written in a testimonial supporting Mr Barber's application for his new post,

The school records of absence for medical reasons show that between 1992 and 1995 (inclusive) Mr Barber was absent for an average of about 4 school days a year, in each case for minor physical ailments.

In his witness statement Mr Barber gave his own account of the onset of his troubles:

Over Christmas close relatives of his expressed concern and urged him to look for another job or (after Mr Barber suggested this alternative) to take early retirement. But on returning to school in the new year he found himself too busy to investigate early retirement. During the spring term of 1996 he felt even worse. On 20 February, at one of his regular monthly meetings with Mr Gill (the deputy head in charge of the timetable) Mr Barber was recorded as speaking of "work overload". His general practitioner's medical records (not then known to the school) show that on 4 March and again on 4 April he consulted his doctor about "work stress". On each occasion there was a discussion with his doctor but no medication or referral.

During the spring term attention focused on the prospect of an Ofsted inspection due in the autumn. This was a cause of general anxiety in the school and an official of the County Council's Education Department, Mrs Murray, visited the school to listen to the views of those teachers who were regarded as "middle management". Mr Barber and a colleague of his, Mr Johnson, had a long meeting with her. They expressed concern about the extra workload caused by the restructuring, and about other matters including school discipline.

During the Easter holidays Mr Barber did obtain figures from County Hall for early retirement, either on the normal basis or on grounds of ill-health. The crucial period begins with the summer term of 1996. Mr Barber said in his witness statement:

The medical records show a slightly different sequence of events. On 2 May Mr Barber took a day off work with "flu-like symptoms". On 8 May he saw his doctor whose notes recorded:

According to the school sickness records his first day off work with stress and depression was 13 May (a Monday) and he returned to work three weeks later, on Monday 3 June. He had sick notes (form MED 3) signed by his doctor on 11 May ("over stressed/depression") and 16 May ("stress"). The medical notes for 16 May record,

The notes for 30 May (with Dr Gardiner, a more senior partner in the practice) record:

On his return to work on 3 June, Mr Barber filled in the County Council's form of sickness declaration stating his trouble as "overstressed/depression". This form was signed by Mr Barber on 4 June and counter-signed on 5 June by Mrs Newton, one of the Deputy Heads.

I have set out this documentary evidence in some detail because it records the first occasion on which the school's senior management team might have realised that something was going seriously wrong with Mr Barber. He had already spoken to Mr Gill about overwork. But here was a senior, hard-working and conscientious teacher missing three weeks in the middle of the summer term, despite the extra work which (as he must have known) his absence would place on the shoulders of his hard-working colleagues. It can hardly have escaped Mrs Hayward and her deputies, Mrs Newton and Mr Gill, that this was a disturbing development which called for inquiry.

Mr Barber's account of his return to work was as follows:

Mr Barber decided to take the initiative in arranging a meeting with the head teacher. A meeting took place at some date in June. There was a conflict of evidence as to what happened at the meeting, at which no one else was present. The judge heard oral evidence from Mr Barber and Mrs Hayward and his findings were as follows:

During July Mr Barber had separate meetings with the two deputy heads. The judge's findings about these meetings were as follows:

The meeting with Mr Gill was probably on 19 or 20 July 1996, at the very end of the summer term.

Just before the end of the summer term the mathematics department was moved from the school's second floor to the third floor. This added to Mr Barber's distress. During the summer holidays he went camping in Cornwall. But just after his return home from holiday he had a panic attack during the night. He saw his doctor on 20 and again on 21 August; the provisional diagnosis was asthma (from which he had not suffered before).

It appears that when Mrs Hayward told Mr Barber in June 1996 that early retirement was out of the question for him, she was arranging her own early retirement. This was announced about five weeks before the end of the summer term. At the beginning of the autumn term Mr Gill was acting temporarily as head teacher, with the Ofsted inspection due in November. Mr Gill told Mr Johnson, a colleague of Mr Barber, that he was concerned about Mr Barber. He hoped that Mr Johnson would keep an eye on Mr Barber, but did not actually ask him to do so. Nor did Mr Gill (who must have had many urgent demands on his time) take the initiative in asking Mr Barber how he was getting on.

The judge did not make any detailed findings about the events of the autumn term. Mr Barber's account (and the judge accepted him as a truthful witness) was that he found himself with the same or even possibly a slightly heavier workload. He had only four free periods a week. He went to see his doctor on 19 September. He was not advised not to go to work. The doctor's notes of this consultation are as follows:

Mr Barber evidently felt that he had failed to explain to the doctor just how bad his condition was. On 25 October he wrote a long letter to his doctor since (as he said) he found that a better way of communicating. He described his problems and symptoms in detail. The letter ended,

The doctor replied promptly asking Mr Barber to come and see him. But before Mr Barber had complied with this invitation a crisis occurred at school. Mr Barber lost control of himself and started shaking a pupil. He left school that day and never returned to his teaching post. The two psychiatrists who subsequently examined Mr Barber as expert witnesses agreed that he was suffering from moderate or severe depression.

The judge gave a careful reserved judgment divided into twelve sections. The sixth and seventh sections (headed "Basic Findings of Fact" and "The Alleged Breach of Duty") are the longest and the most relevant to this appeal. The judge has been criticised for dealing with questions of causation under the heading of "Basic Findings of Fact" before he had found (as he did in the next section) a breach of the County Council's duty of care as an employer.

In my opinion there is not much substance in that criticism. After putting in a defence which consisted largely of blank non-admissions and denials, the County Council at trial put forward a case, largely based on the evidence of Mrs Hayward, that Mr Barber was a malingerer, or something close to it, who had been trying to work the system so as to get a larger pension on early retirement on grounds of ill-health. The judge had to make an assessment of the credibility of the witnesses whom he saw and heard. He did not find Mrs Hayward to be a convincing or impartial witness. He found Mr Barber to be an honest witness. It seems to me that it was right for the judge to make these findings at an early stage in his judgment. He found it convenient, in the same part of his judgment, to make findings about the three theories which had been put forward, largely it seems by Mrs Hayward, as to the reasons for Mr Barber's mental breakdown (that is the failure or non-development of an incipient relationship with a woman teacher, Mr Barber's apprehension about the pending Ofsted inspection, and the accusation of malingering already mentioned). I do not think the judge can be criticised for structuring his judgment in this way.

The judge's conclusions as to the breach of the employer's duty of care came after his findings on Mr Barber's meeting with Mrs Hayward in June 1966:

Similarly the judge observed, after his findings on the meetings with Mrs Newton and Mr Gill:

The judge also attached importance, in reaching these conclusions, to the guide "Managing Occupational Stress: A Guide for Managers and Teachers in the Schools Sector" published in 1990 by the Health & Safety Commission:

The Court of Appeal's composite judgment (on the County Council's appeal and the three appeals heard with it) begins with three sections: Introduction; Background Considerations; and the Law. Mr Barber rightly directed hardly any criticism towards these. The exposition and commentary in this part of the judgment is a valuable contribution to the development of the law (although your Lordships have heard no argument on the section dealing with apportionment and quantification of damage, and I think it better to express no view on those topics).

In particular the Court of Appeal has recognised that although injury which takes the form of psychiatric illness is no different in principle (for a primary victim) than physical illness or injury, the causes of mental illnesses

This uncertainty has two important consequences. First, the reaction of some of Mr Barber's colleagues—"We are all overworked, and your workload is no worse than anyone else's"—is entirely understandable, but ultimately irrelevant. Overworked people have different capacities for absorbing stress, and different breaking points. Hence (and this is the second point) the importance of what the employee tells the employer. Senior employees—especially professionals such as teachers—will usually have quite strong inhibitions against complaining about overwork and stress, even if it is becoming a threat to their health. Personal and professional pride, loyalty to the head teacher and to colleagues, and the wish not to add to their problems and workload, may all influence a teacher not to complain but to soldier on in the hope that things will soon get a little better.

The Court of Appeal set out its view on this point in para 29 of its judgment:

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.

Generally he is entitled to take what he is told by or on behalf of the employee at face value.

This is, I think, useful practical guidance, but it must be read as that, and not as having anything like statutory force. Every case will depend on its own facts and the well-known statement of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783, remains the best statement of general principle:

The Court of Appeal concluded that the judge had been wrong in finding a breach of the County Council's duty of care. Its reasons are set out at paras. 57 to 59 (with a fuller statement and discussion of the facts at paras 139 to 174 in the Appendix). I will set out paragraphs 57 to 59 in full:

My Lords, the issue of breach of the County Council's duty of care to Mr Barber was in my view fairly close to the borderline. It was not a clear case of a flagrant breach of duty any more than it was an obviously hopeless claim. But the judge, who saw and heard the witnesses (including Mr Barber himself, Mrs Hayward and Mr Gill) came to the conclusion that the employer was in breach of duty, and in my view there was insufficient reason for the Court of Appeal to set aside his finding. The Court of Appeal was concerned about the timing of the breach, but for my part I do not think there is much room for doubt about that. The employer's duty to take some action arose in June and July 1996, when Mr Barber saw separately each member of the school's senior management team. It continued so long as nothing was done to help Mr Barber. The Court of Appeal evidently considered that Mr Barber was insufficiently forceful in what he said at these interviews, and that he should have described his troubles and his symptoms in much more detail. But he was already suffering from depression, and neither Mrs Hayward nor Mrs Newton was a sympathetic listener. What the Court of Appeal failed to give adequate weight to was the fact that Mr Barber, an experienced and conscientious teacher, had been off work for three weeks (not two weeks, as the Court of Appeal thought at para 160) with no physical ailment or injury. His absence was certified by his doctor to be due to stress and depression. The senior management team should have made inquiries about his problems and seen what they could do to ease them, in consultation with officials at the County Council's Education Department, instead of brushing him off unsympathetically (as Mrs Hayward and Mrs Newton did) or sympathising but simply telling him to prioritise his work (as Mr Gill did).

It was argued that the school as a whole was facing such severe problems (with all the teachers stressed and overworked, no budget for more staff, and the Ofsted inspection looming) that there was nothing that the school could have done to help Mr Barber other than advising him to resign, or in the last resort terminating his employment (a point on which the Court of Appeal made some observations in para 34 of its judgment). I would not accept that. At the very least the senior management team should have taken the initiative in making sympathetic inquiries about Mr Barber when he returned to work, and making some reduction in his workload to ease his return. Even a small reduction in his duties, coupled with the feeling that the senior management team was on his side, might by itself have made a real difference. In any event Mr Barber's condition should have been monitored, and if it did not improve, some more drastic action would have had to be taken. Supply teachers cost money, but not as much as the cost of the permanent loss through psychiatric illness of a valued member of the school staff.

Although it is generally unprofitable to contrast the facts of one case with those of another, I would refer briefly to the Scottish case of Cross v Highlands and Islands Enterprise [2001] IRLR 336, which was cited by Mr Collender. That was a very sad case of a promising 39-year old executive, employed in a job in which (because of geographical factors) close day-to-day supervision of his work was impossible. He became ill with depressive illness and killed himself. The employer was held not liable because no causative breach of duty was established. After the employee had been off work with depression, his line manager travelled to see him and spent almost the whole day discussing his work and his future with him. He reduced his responsibilities and continued to maintain contact with him by telephone (see para 84). Unfortunately the depression continued, but the employer was not liable for the tragedy which ensued because (para 86)

The facts were therefore very different from those of the present case.

There is no doubt, in Mr Barber's case, that the job was the problem.

The Court of Appeal also attached weight to the fact that Mr Barber did not make any further complaint during the autumn term. The judge had to assess the significance of that but he evidently (para 56) saw Mr Barber's nervous breakdown in November 1996 as caused by failures on the employer's part which had continued since the summer term. During the autumn term Mr Barber was still ill with depression, and he seems to have concluded, after his experiences in the summer, that further complaint would be pointless. He had also (as he saw it) failed to obtain help when he went to his doctor on 19 September 1996 and his doctor did not advise him not to go to work. But as the senior management team did not know that Mr Barber had been to see his doctor, they cannot take much comfort from the doctor's opinion. The judge was entitled to form the view that the school's senior management team were in a position of continuing breach of the employer's duty of care, and that that caused Mr Barber's serious nervous breakdown on 12 November 1996.

I would allow this appeal and restore the judge's judgment in favour of Mr Barber, but in the reduced agreed sum of £72,547.02 together with interest at the judgment rate from 8 March 2001.

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