Hartman v South Essex Mental Health & Community Care NHS Trust [2005] EWCA Civ 6

“It is not the act but the consequences on which tortious liability is founded. The defendant will be deemed liable for those consequences, not because he has caused them in the course of some careless or otherwise undesirable activity, but only if they were caused by his failure to take precautions against a foreseen or foreseeable and legally relevant danger.”

“Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least 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 just 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.”

“(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply. (2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors). (3) Foreseeabilty depends on what the employer knows or ought to know about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability. (4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health. (5) Factors likely to be relevant in answering the threshold question include (a) the nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made for this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? (b) signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from mental illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others? (6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further inquiries of his medical advisers. (7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it. (8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and the practicability of preventing it, and the justifications for running the risk. (9) The size and the scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties. (10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this. (11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. (12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job. (13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care. (14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm. (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrong doing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment. (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.”

“But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent is he bound to probe further into what he is told? 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. It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive enquires. Generally he is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee’s permission to obtain further information from his medical advisors. Otherwise he would risk unacceptable invasions of his employee’s privacy.”

“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 overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light for what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

“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.”

“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 immediate collapse was foreseeable, which he held was not.”

“An employer will be in breach of duty to an employee if the employer subjects the employee to severe pressure of work in circumstances where the employer knows, or ought reasonably to foresee, that this is likely to cause the employee to suffer some form of breakdown which results in psychiatric injury. Happily most employees are sufficiently robust to withstand the stress of a heavy workload. Thus it is normally necessary to demonstrate, before breach of duty can be established, that the employer had particular reason to apprehend the danger that such injury would be caused to the individual employee.”

“46 I took the view that (Mrs Hartman’s) job as in many jobs in the caring services was intellectually and perhaps most of all emotionally stimulating work being very demanding and often I suspect very rewarding for example if one’s charges make unexpected progress. Thus I think that it was one of those employment situations which required of the employer a high level of alertness to over work and its ramifications even though the case must be considered within the general ambit of the law of negligence between employer and employee and one should not apply special control mechanisms to stress claims. 47 What should they have taken into account so far as (Mrs Hartman) in particular was concerned? They knew from her original application that she had complained of high blood pressure and anxiety in November 1988 and that she was currently on medication by way of tranquillisers, Temazepam and Diazepam every night and day respectively. I do not think one can ignore the fact that this was a Health Authority and not the occupiers of a scrap yard that might therefore have better insight into medical issues. They were of course aware of the accident and its consequences for the staff and that the staff generally had not taken up the offer of counselling. They were also aware that the general complaint had been made and repeated in Mrs King’s long and explicit letter regarding the extent of the overwork and the oppressive nature of the work coupled with the new working practices. When Mrs Ward, their own locality manager expressed the view that the health of the staff was being endangered they did nothing which produced any relief whatsoever. If I ask myself whether the indications were plain enough for any reasonable employer to realise he should do something about (it) I find the answer resoundingly in the affirmative. 48 Preferring the evidence of (Mrs Hartman) and her witnesses to that of Mrs Ward generally I had no hesitation in accepting that she had proved beyond the balance of probabilities that she had suffered injury to her health and that this was attributable at least in part to her work. 49 One had here then a home accommodating in fact at the material time very few staff at which no less than four people including Mr Coombes had left through stress for one reason or another and accepting that such problems are perhaps usually multi-factorial one is bound to say along with Lady Bracknell that to lose one member of staff to stress is perhaps misfortune but to lose three or possibly four is carelessness.”

“The notion that some occupations are in themselves dangerous to mental health is not borne out by the literature to which we have already referred: it is not the job but the interaction between the individual and the job which causes the harm. Stress is a subjective concept: the individual’s perception that the pressures placed upon him are greater than he may be able to meet. Adverse reactions to stress are equally individual, ranging from minor physical to major mental illness.”

“The following information is for use by the occupational health service only.”

“fit for employment in this post.”

“The fact that a doctor is a salaried employee gives no other employee of that company any right of access to medical records or to the details of examination findings. With the employee’s consent, the employer may be advised of any relevant information relating to a specific matter on a strictly need to know basis, the significance of which the employee clearly understands. If an employer explicitly or implicitly invites an employee to consult the occupational physician, the latter must still regard such consultation as strictly confidential.”

“They were of course aware of the accident and its consequences for the staff and that the staff generally had not taken up the offer of counselling.”

“The death of any child, if you have even some peripheral involvement with it, is traumatic. For her, bearing in mind her vulnerability, it would have been additionally traumatic. Having said that, she coped with it reasonably well at least superficially, and carried on working. It was obviously an additional stressor.”