Harding v Pub Estate Company Ltd [2005] EWCA Civ 553

Case No B3/2004/0377[2005] EWCA Civ 553
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON COUNTY COURT
HIS HONOUR JUDGE GEE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 11 May 2005
Before
LORD JUSTICE SCOTT BAKERMR JUSTICE WILSON
Between
EDWARD HARDINGRespondentTHE PUB ESTATE COMPANY LTDAppellants
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Michael Kent Q.C and Catherine Foster (instructed by Messrs Halliwells) for AppellantsCharles Feeny (instructed by Messrs EAD) for Respondent
Judgment
[1]The respondent, who is 59, succeeded in obtaining judgment on liability for personal injury caused by stress at work. The hearing was before Judge Gee in the Preston County Court sitting at Blackburn between 5 and 7 January 2004. He handed down a written judgment on 6 February 2004. The appellants, his former employers, appeal against that decision, with the leave of this court following an oral hearing on 18 June 2004.[2]Essentially what happened was this. On 6 April 1997 the respondent went to manage the Antelope Public House in Little Hulton on the outskirts of Manchester. This was a rough area and the appellants appointed the respondent, as a temporary manager of proven ability, to bring the Antelope up to profitability so that they could dispose of it. The respondent worked hard and extremely long hours. Unfortunately, on 17 September 1998 he suffered a heart attack for which he was admitted to hospital. Three days later his employment with the appellants was terminated.[3]The basis of the respondent’s claim is that the appellants were negligent, expecting him to work long hours under stress in managing licensed premises that were rife with criminal activity and that they failed to accede to his requests for help or take other appropriate steps. Following his heart attack the respondent is no longer the man that he was and is at a disadvantage on the labour market. Damages have not yet been assessed.[4]The courts have become increasingly familiar in recent years with claims by employees for damages for personal injuries caused by stress at work. See e.g Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 ALL ER 1, Barber v Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089, and very recently Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 06. Most of these cases have been concerned with psychiatric injury. But to my mind it makes no difference to the issue of liability that the injury in fact suffered by the respondent in the present case was a heart attack rather than a psychiatric breakdown.[5]The judge said that in simple terms this was a case involving stress at work where the respondent alleged the appellants were responsible for his heart attack. They owed him a duty to reduce the stress and because they failed to do so they are liable to compensate him. The judge correctly directed himself that it was not enough for the respondent to establish that he had suffered stress, that stress can cause heart attacks and that the appellants were aware of this.[6]The judge cited liberally from Hatton and the appellants do not suggest that he misunderstood the law or misdirected himself about it. Rather the complaint is that if the law is correctly applied to the evidence in this case the claim must fail. The judge spelt out the issues that he had to decide, observing that they were not really in dispute. They were:(i) the respondent’s working conditions;(ii) whether the respondent was exposed to a foreseeable risk of suffering a heart attack attributable to stress at work;(iii) integral to issue (ii), whether the appellants knew or ought to have known of any special vulnerability of the respondent which was likely to render him more susceptible to suffering a heart attack;(iv) if there were indications of impending harm to health, whether the appellants were in breach of duty by failing to take steps which were reasonable in the circumstances;(v) if so, whether the breach of duty caused or materially contributed to the harm suffered.[7]The judge directed himself that the reality was the respondent had to show the appellants knew that the stress at work was likely to cause injury to his health. “In other words I have to be satisfied, on a balance of probabilities that (the respondent) told his line manger, as he said he did, that he had seen his doctor and that his health was being affected by his work”.[8]The court did not hear any oral medical evidence. There was, however, an agreed statement dated 10 March 2003 from two cardiologists, Dr Saltissi and Professor Hart, and also three reports from Dr Saltissi and one from Professor Hart as well as a psychiatric report from Dr El-Assra. There were also some G.P. and hospital notes. The critical conclusions of the cardiologists were that the respondent must have had underlying coronary artery atherosclerosis that predated the onset of his employment with the appellants; that chronic severe stress exacerbated or accelerated the process of chronic atherosclerosis formation and that acute stress can act as a trigger for plaque rupture and hence the sudden and unpredictable initiation of a myocardial infarction; that severe stress at work was a trigger for the heart attack occurring when it did and it was not possible to say when, if at all, one would have occurred in its absence. They said that their opinion was based on acceptance of the fact that the respondent was subject to continual and repeated threats, (i.e. from unruly customers), that his property had been damaged, that his wife was living on site and that, as a result of this he was feeling increasingly hopeless and powerless to change his working condition. This type of occupation characterised by high demands coupled with low control is particularly coronary prone. Were the court to hold the respondent’s job did not involve severe stress or strain their opinion would be amended.[9]Dr El-Assra found no evidence that the respondent had developed a psychiatric disorder.[10]The judge’s approach was that all the witnesses were doing their best to tell the truth as they recalled it. He did not form an unfavourable impression of any witness. He was particularly impressed with Mr Sage one of the appellants’ line managers and even more impressed with the respondent. He accepted the respondent’s and his wife’s description of events and the level of stress caused having, as he put it, tested their evidence against points put in cross-examination and made in counsel’s final speech. He concluded in respect of the first issue that the respondent’s working conditions established the premise on which the experts had based their opinions.[11]The judge then said he next had to determine whether the respondent told his superiors that he had seen his doctor and that his working conditions were having an effect on his health. The judge clearly appreciated that there was a sharp distinction between the evidence of the two sides at this point. The respondent’s case was that he told his superiors he had seen his doctor and his working conditions were having an effect on his health. The appellants’ witnesses, Messrs Sage and Cowland, had no recollection of any such thing being said albeit the respondent was never shy to complain when there was something to complain about. The judge did not, however, go on to analyse just what was said and to whom and when it was said. In my judgment this is an exercise that he should have carried out and one that was of great importance in the circumstances of this case. It is the kind of case that has sometimes been called a “first breakdown” case. It was therefore critical for the judge to find the circumstances that put the appellants on notice that if they did not take action it was reasonably foreseeable the respondent would suffer either a psychiatric breakdown or, as in the event occurred, a heart attack. All the judge did was to say:
“Shortly, his hours were too long, he felt compelled to work them to increase profitability as was expected of him. (The appellants) should have paid heed when they were alerted to what his doctor was saying, and they should have done something about it.”
It was particularly important for the judge to conduct such an analysis as the appellants’ case was that the respondent’s evidence of his complaints was vague and that what he had said to Messrs Sage and Cowland could not reasonably be regarded as an indication of impending harm to health.[12]It is necessary therefore to look with some care at the history of events and ascertain the high-water mark of the respondent’s case. Did he make sufficiently clear and cogent complaints with regard to risk to his health?[13]When the respondent was employed by the appellants in April 1997 he had 17 years experience in the trade. He took on the management of the Antelope for a limited period with a view to bringing the profitability up to an acceptable level so that it could be disposed of. No food was served in the public house and the respondent’s budget permitted the employment of 5 full time staff in addition to himself. As the manger it was up to him to organise his work. In the respondent’s further information under Part 18 he confirmed that he made no complaint about staffing levels; he repeated this in his oral evidence.[14]The Antelope’s refurbishment was completed in June 1997 and from then until the end of June 1998 it was open from 12.00 noon until 11pm seven days a week; thereafter it was closed from 3.30 until 7pm at the weekends. The Antelope was in a very rough area and there were numerous problems with different kinds of criminal activity. The respondent’s case was put not on the basis that the appellants could have modified his working conditions, given that they were the result of the acts of others, but that his exposure to those conditions could and should have been modified so as to reduce the stress on him.[15]The respondent’s G.P records were obviously an important feature in the evidence. They contain no diagnosis of any relevant physical or psychological illness or disease. Apart from mention of a flu vaccination in November 1997 the respondent’s first visit to his general practitioner after taking over the Antelope was on 29 January 1998. He then complained that over the past 12 months he had suffered shortness of breath, that this was then happening 2 or 3 times a week. The notes record:
“some stress at work and placed by employers in difficult pub.”
Also “working long hours”. The diagnosis is stress related problems for which paroxetine is prescribed.[16]The next visit was some 5 weeks later on 5 March 1998. The relevant note records:
“Improving. Tension headaches and breathing a lot better. Still working long hours 7 days per week”
. Then there is a reference to having a chat re: terms and conditions and discussion with boss.[17]Another 5 or 6 weeks passed before he made his next visit on 14 April 1998. He was then complaining of labyrinthitis which was easing off. Also, he had run out of paroxetine, but was feeling better because he had just been on holiday for 2 weeks. The entry concludes with reference to starting a new job in 6-8 weeks. I shall return to this in §33.[18]On 2 July 1998 he attended his doctor for a skin condition. There is no reference either to stress or to his work. The next entry is on 24 September 1998 and records his heart attack the previous week.[19]There are several matters that were not in dispute and it is important to have them in mind as part of the overall picture. The Antelope was situated in a difficult area but environmental factors were not matters over which the appellants had any control. The respondent had no history of being an especially vulnerable individual; he was an experienced publican. He worked long hours, about 70 hours a week. There were no sick notes and none of his medical history was known to the appellants. His general practitioner at no point predicted a heart attack.[20]Against this background it is necessary to look carefully at how the respondent put his case on the appellants’ state of knowledge and forseeability and how the evidence unfolded.[21]In paragraph 7 of the particulars of claim it is said that his health deteriorated and he went to his general practitioner. He was advised to take some time off and get away from the public house; he explained this to his area managers. In the following paragraph it is said that in the summer of 1998 the appellants agreed after protest that he could take a holiday but that during the holiday he received telephone calls asking what should be done about various problems. He expanded on his case with further information provided under CPR Part 18, responding to a question asking for the complaints to his managers to be identified. He identified them as follows:• To Mr Sage in January 1998 on a routine visit to the Antelope.• In February 1998 to Mr Cowland.• On 25 February 1998 to Mr Homer at a managers’ meeting.• To Mr Cowland soon after 5 March 1998 that he had been to his G.P.• On 29 April 1998 when he and his wife met Mr Sage and Mr Cowland at the Antelope.• On 27 May 1998 at a managers’ meeting to Mr Cowland.• On 15 June 1998 to Mr Sage.• On 29 July 1998 to Mr Sage.• On 3 August 1998 to Mr Sage.• On 31 August 1998 to Mr Sage.[22]Even from the pleadings it is apparent that most of the complaints, particularly from April 1998 onwards, were directed at what can loosely be described as environmental factors namely related to the clientele and neighbourhood rather than impact on the respondent’s health.[23]The respondent went on to provide further voluntary information in the same pleading. At the time of the first February 1998 meeting Mr Cowland had just become area manager and he visited with Mr Sage. The respondent told Mr Cowland his G.P had advised him against working too many hours and of the stress that the work entailed. On 25 February 1998 at the managers’ meeting he told the managing director the business was doing well but that it was taking its toll on him and his wife. On (or he may have meant to say that after) 5 March 1998 he told Mr Cowland he had to go to his G.P again and that the G.P had told him that he needed to work fewer hours because he was becoming too stressed. The claimant was on holiday from 30 March 1998 to 14 April 1998 but had to make phone calls every day to check on the staff and the safety of the public house. On 29 April 1998 the respondent’s wife expressed concern to Mr Cowland and Mr Sage about the respondent’s state of health but it was treated as a joke.[24]Mr Kent Q.C, who has appeared for the appellants makes the important point that complaints about the public house are not in themselves complaints about impending danger to health. In his initial witness statement the respondent said simply:
“I visited my G.P and I was told that I had to take some time off to get away from the pub. I told the area managers that I had been to see my doctor and that I needed time off.”
[25]This was supplemented by a further statement a few months later in which he expanded on events from the end of April onwards explaining how he told his employers he felt stressed out and tired. He also said his only symptoms were that he was physically exhausted all the time and physically frightened. This has, however, to be seen in the context that there was no mention of any of this to his G.P during this period.[26]The witness statement of the respondent’s wife makes no reference to any complaint to the appellants.[27]It is unnecessary to describe the appellants’ evidence in any detail. The judge preferred that of the respondent and there is no challenge to this. What is clear is that the appellants’ evidence makes it very clear that as far as they were concerned they were told nothing about visits to his G.P, health problems or impending danger to health. Before the court started to hear oral evidence, therefore, the battle lines were clearly drawn on the issue of complaints about injury or possible injury to health.[28]I turn next to the oral evidence. We know that the respondent’s first relevant visit to his G.P was on 29 January 1998. The doctor neither signed the respondent off work nor called him back for a further visit. The respondent’s evidence was he spoke to Mr Homer on 25 February 1998. Mr Homer asked him how the pub was doing to which the respondent answered that the business was ok but it was not doing his wife and himself any good. That was the end of the conversation.[29]His next visit to his G.P was on 5 March 1998. The respondent is noted as “improving” but there is reference to the respondent having a chat with his boss about the terms and conditions of his employment. The respondent says at 9G that at the next opportunity he spoke to one of the area managers about it but he does not go on to describe the conversation.[30]In cross-examination the respondent said he told Mr Sage he was suffering from stress and needed a holiday but he did not identify the occasion. Mr Kent pointed out in argument that the respondent was in fact on a week’s holiday at the time of his January visit to the G.P. The G.Ps notes do not support the respondent’s evidence at 48G that on 5 March 1998 the doctor told him he couldn’t carry on as he was and he’d have to have more time off. He gave the respondent no certificates and recorded he was improving.[31]The respondent’s third visit to his doctor was on 14 April 1998 but the purpose of his visit was labyrinthitis and nothing to do with stress. It is to be noted(i) that he had just returned from a further 2 weeks holiday and was feeling better and(ii) that he had run out of paroxetine and the doctor did not prescribe any more. From this moment onwards there is not a shred of evidence in the medical notes about stress or that the doctor was alert to the risk of either an impending heart attack or a psychiatric breakdown. The previous complaints to the doctor had focussed on long hours and the need for a break. He’d had two holidays, one at the end of January and the other at the end of March, and to an extent his hours of work were in his own hands; he made no complaint, whether to the doctor or the appellants, about shortage of staff.[32]Interestingly at 91G the respondent agreed in cross-examination that if he was not telling his doctor he was stressed out he was hardly likely to be telling his employer. He certainly did not from April 1998 make any such complaint to his doctor.[33]When the respondent told Mr Sage he’d been offered another job (as manager of the Old King Cole) and expected to start in 5 or 6 weeks time he did not, as one might have expected, tell Mr Sage that the Antelope was making him ill. There is no doubt that the respondent was bitterly disappointed that his application for a job at the Old King Cole fell through at a late stage. It does not, however, have any bearing on his claim against the appellants.[34]The evidence of the respondent’s wife supported him in that she made it plain to the appellants that neither of them liked the conditions in which they worked. She was not, however, in a position to give any evidence that supported the case that the appellants were put on notice about risk to the respondent’s health. Indeed her evidence about the meeting on 29 April 1998 categorically conflicted with that of her husband in that at 5A she said nothing was said about his state of health on that occasion (the occasion which is identified, according to their evidence, by Mr Cowland and Mr Sage treating their complaint as a joke).[35]In my judgment a revealing answer was given by the respondent when it was put to him in cross-examination that the really stressful thing was not working at the Antelope but losing the job at the Old King Cole. His answer was at 93F:
“You don’t think it was anything to do with all the fighting and all the bruises and all the rest of it that we had to put up with at the pub……?”
He was there suggesting to counsel that it was the working environment which was the subject of his complaint; and it is accepted that his employers could not have done anything about it.[36]The judge in my judgment failed to conduct any analysis of the evidence with a view to finding with some care what the respondent had said to the appellants and when they should have been alerted to the risk of a breakdown in his health, whether psychiatric injury or the sort of event that in fact occurred. Had he done so he would have found that nothing was said that should have flagged up to the appellants such a risk. In truth no one foresaw a breakdown nor was one reasonably foreseeable. There was no clear sign to his doctor that such a warning should be passed on to his employer. On the evidence the appellants were never given the kind of warning that required them to act.[37]In my judgment the respondent fails at this point. No breach of duty is established on the part of the appellants. In these circumstances it is unnecessary to go on to consider the question of causation. What should the appellants have done and would it have made any difference? It seems to me these are real difficulties in the respondent’s way on this aspect of the case. He was the manager. He accepted he had sufficient staff. What hours he worked was a matter for him. Whatever hours he worked, the content of the job did not change. He never said to the appellants that they must reduce his hours. The cardiologists’ evidence focuses on the environmental side of the job rather than the long hours. How would a reduction in hours or additional help relate to the stressors? In the end I am left in serious doubt whether, even if able to establish a breach of duty, the respondent could show that the breach made a material contribution to his heart attack. The point does not, however, as I say arise because the respondent is not able to establish a breach of duty. In short, no sufficient message was ever passed to the appellants of a risk to the respondent’s health. As Hale L.J, as she then was, said in Hatton at para 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 does not lead to damage to health………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 or physical health, then the employer will have to think what can be done about it.”
That point was not, in my judgment, reached in this case.[38]I would allow the appeal. Wilson J.[39]I agree.[40]As a trial judge, I learn something important from this appeal. It may seem a temptingly efficient use of judicial time to do what the judge did: namely to attach as schedules to the judgment the written final submissions of counsel; in relation to the dispute as to what the respondent had told the appellants about the effects upon him of his employment, to express a compendious preference for his evidence to that of their witnesses; to explain that preference almost entirely by a generalised adoption of the scheduled submissions of the respondent’s counsel; and, momentarily losing sight of the contention within the dense submissions on behalf of the appellants that, even if accepted, the respondent’s evidence was insufficient to attract upon them a duty to take reasonable steps to protect his health, to proceed without further consideration upon the basis that, on the contrary, his evidence sufficed in that regard.[41]There is no dispute that the judge, for whom I have profound respect, was entitled to prefer the evidence of the respondent. But, had he conducted the exercise which it has fallen to my Lord to conduct, namely that of setting out in judgment precisely what, in his written and oral evidence, the respondent claimed to have said, the judge would quickly have realised the insufficiency of his case. In his extensive recital of the headnote to the report of the decision of this court in Hatton v Sutherland [2002] 2 All ER 1 the judge had reminded himself of the proposition, to be found in §43 (7) of the court’s judgment, that:
“To trigger a duty to take steps, the indications of impending harm to health arising from stress at work had to be plain enough for any reasonable employer to realise that he should do something about it.”
[42]For the reasons given by my Lord, the respondent’s evidence failed to get within striking distance of activating the trigger.

ORDER

Appeal allowed. The Claimant’s claim is dismissed. There is Judgment to be entered for the defendant. The claimant is to pay the defendant’s costs of the action and the appeal to be subject to a detailed assessment. (Order does not form part of approved judgment)

Cited in 1 later judgment