MARK HONE v SIX CONTINENTS RETAIL LTD [2005] EWCA Civ 922

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(HHJ GRAHAM JONES)
[2005] EWCA Civ 922Case No Case No.: B3/2004/2128Venue Royal Courts of Justice, Strand, London, WC2
Between
MARK HONERespondent/ClaimantSIX CONTINENTS RETAIL LTDAppellants/Respondents
Before
The Master of the RollsLord PhillipsLord Justice DysonLord Justice WallMR LAWRENCE WEST QC (instructed by Messrs Eaton Ryan and Taylor, Birmingham)appeared on behalf of the AppellantsMR BRIAN LANGSTAFF QC AND MR DAVID CALLOW (instructed by Messrs LeoAbse & Cohen, Cardiff) appeared on behalf of the RespondentDate 29 June 2005

LORD JUSTICE DYSON:

This

[1]is an appeal by the defendants against the order of His Honour Judge Graham Jones dated 24th September 2004 sitting at Swansea County Court whereby he gave judgment in favour of Mr Hone in the sum of £21,840 damages for psychiatric injury caused by stress at work.[2]Mr Hone commenced employment with the defendants as a Licensed House Manager in 1995. On 20th August 1999 he started to work as a Licensed House Manager for the defendants at their Moat House in Luton.[3]Mr Hone's complaint in this litigation is that his workload was excessive and that this eventually caused him to suffer stress and psychiatric injury. On 15th May 2000 he saw his general practitioner complaining of headaches and insomnia. On 17th May he was referred by his general practitioner to a consultant neurologist. On 28th May he collapsed at work following giddiness and chest pain and has not worked for the defendants since that date.[4]His case in a nutshell is that his psychiatric injury was caused by stress which in turn was attributable to his being required to work excessive hours without adequate support. He kept records which purported to show that in the period from the end of March until the middle of May 2000 he was working mainly between 89 and 92 hours per week, seven days a week. The lowest recorded figure, according to his records, was 82 hours for the week ending 8th April.[5]In respect of the period up to April 2000 the judge found that there were four employees who were in key positions, any of whom could have deputised for Mr Hone so as to allow him to take time off from work. These were Mr Babbs, Mrs Mavis Milne, Mr Gareth Lewis and Mrs Hone. The judge accepted the evidence of Mr Kiernan, the defendant's retail business manager, that had Mr Hone planned the work during this period as he ought to have done, he would have created time off for himself. There was no need for him to work the hours that he claimed he worked. Indeed the judge said it was not easy to understand how he actively and properly filled those hours up until April 2000. Moreover, the judge found that in this period Mr Hone had suffered no harmful reaction to the pressures of work and none was reasonably foreseeable. He said at paragraph 64 of his judgment:
"There were no signs from Mr Hone himself of impending harm to health. Indeed, the contrary was the case. Though Mr Hone did complain of working long hours, that has to be put into the context of his lack of planning of the work and Mr Swain's evidence that senior management often heard from licensed house managers that they were working too many hours, they were not earning enough money and that they did not have enough staff. It was part of the process of LHMs having an opportunity to 'let off steam'."
But, the judge said, it was the events of April 2000 which were critical in this case. He said at paragraph 65:
"Two of the key employees (Mr Babbs and Mr Gareth Lewis) then left. Mrs Milne's administrative role came to an end. I find that these events did impose extra burdens and pressures upon Mr Hone, not to the extent he claims, but to an extent which is significant in relation to a claim of this type. Because of Mr Babbs' departure, Mr Hone did have to spend extra time in the kitchen. The departure of the other key workers meant that, even if he had planned the work to the best advantage, he would not have been able to arrange sufficient time off. There were problems in recruiting staff in the Luton area. An assistant manager had still not been recruited."
The judge then turned to the important meeting that was held between Mr Reynolds and Mr Hone on 19th April. Mr Reynolds had become the Operations Manager of the defendants in April of that year. The meeting was requested by Mr Reynolds who had been told by Mr Kiernan that Mr Hone was refusing either to opt in or to opt out of the Working Time Regulations 1998 because of "lack of management support". Mr Reynolds had been told by Mr Kiernan that this was a reference to Mr Hone's complaint that there was no assistant manager. Mr Reynolds also knew that Mr Hone was saying that he was having to work very long hours and he had access to Mr Hone's records of the numbers of hours worked.[6]In the course of his cross-examination, Mr Reynolds was asked questions about the Working Time Regulations and the exchanges included the following:
"Q. It was obviously -- with your robust knowledge, as you put it, of the Working Time Regulations, that presumably would sound alarm bells to you? A. Absolutely. Q. Because as we know, and you would have known, in addition to the 48 hour maximum working week that was of primary concern under the regulations, there's also the provisions in relation to having rest days and clear 24 hour days off in a seven day week. A. Yes. Q. So that would be the first thing that would spring to your mind at this time when you were told that you didn't have an assistant manager? A. Yes."
Then a little later. "Q. Oh yes of course, no, all I'm saying is that with your knowledge of the Working Time Regulations that would particularly ring alarm bells with you wouldn't it? A. Yes."[7]The judge also found that even though Mr Hone had begun by this time to suffer from headaches and was probably taking painkillers, he made no mention of this to Mr Reynolds at the meeting, but he did tell Mr Reynolds that he was working excessively long hours and was tired. On the basis of what he was told at the meeting of 19th April, Mr Reynolds accepted that Mr Hone needed help. Indeed the judge found at paragraph 76:
"Mr Reynolds appears to have accepted, as a result of the April meeting, that an assistant manager should be appointed."
Yet apart possibly from some occasional relief, as to which the judge said the evidence was not clear, he held that no help was provided. In particular no assistant manager was in place until after Mr Hone's collapse. It is right to say that Mr West has to some extent challenged this aspect of the judge's findings. He has taken us to some of the material that was before the judge and has submitted that in fact some additional help was provided and that the position was not quite as bleak from Mr Hone's point of view as suggested by the judge. For example, he has pointed to material which indicates that Mr Babbs was still there until 8th April at least and that by the week commencing 23rd April Mr Cobain was present. But as I read the judgment, the critical finding made by the judge on this aspect of the case was that the request for an assistant manager (which lay at the heart of the complaint made by Mr Hone) had not been acceded to by the time he collapsed. There is no challenge, as I understand it, by Mr West to that central finding.[8]It was on this material that the judge found that at and after the meeting of 19th April an injury to Mr Hone's health attributable to stress at work was reasonably foreseeable - that appears from paragraphs 68 and 70 of the judgment. The judge also held at paragraph 73 that the defendants were under a duty to take all reasonable steps to ensure that, not having obtained Mr Hone's written agreement to do otherwise, he did not work for more than 48 hours per week. The judge said that it was well within the considerable resources available to the defendants to have provided as a first step and with effect from the third week in April an assistant manager so that Mr Hone had two days off each week. Instead the judge found that the defendants stood idly by until Mrs Hone telephoned Mr Kiernan telling him that Mr Hone was sick and had headaches and chest pains some time in the middle or the later part of May.[9]In this appeal, Mr Lawrence West QC challenges the finding by the judge that an injury to Mr Hone's health as from 19th April 2000 was reasonably foreseeable. That is the sole issue on the appeal. It is accepted by the defendants that the judge directed himself correctly and that in all other respects his findings and conclusions cannot be challenged.[10]The judge referred to the leading decision of this court in Hatton v Sutherland [2002] EWCA Civ 76 , [2002] ICR 613 , where giving the judgment of the court Hale LJ identified a number of what she called practical propositions which provide valuable guidance as to the approach that should be adopted in cases of this kind. That guidance was for all practical purposes endorsed completely by the House of Lords in Barber v Somerset County Council [2004] UKHL 13 , [2004] 1 WLR 1089 .[11]The propositions which are material to this appeal are the following and are set out at paragraph 43 of the judgment in Hatton v Sutherland :
"(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) Foreseeability depends upon what the employer knows (or ought reasonably 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 employees can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability."
At paragraph (5), Hale LJ identifies a number of factors which she says are "likely to be relevant in answering the threshold question". Her list is not intended to be exhaustive. Mr West has made the point that the factors listed by Hale LJ include none which are applicable to or were purportedly applied by the judge in the present case. The seventh proposition is in these terms:
"(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."
The judge was well alive to these propositions and purported to apply them. There was therefore no misdirection in this case. The issue is whether the judge applied in particular the seventh proposition correctly. Mr West submits that he did not do so because there was not sufficient material upon which the judge could properly conclude that injury to Mr Hone's health was reasonably foreseeable if the judge applied proposition number 7 as properly understood.[12]The reasons for the judge's conclusion on foreseeability are to be found in various parts of his judgment but are perhaps most conveniently summarised in the reasons that the judge gave when refusing permission to appeal. We have a transcript of those reasons and it is worth setting them out:
"Firstly, the knowledge available to Mr Reynolds was that Mr Hone was working very long hours. Mr Hone himself then complained at the meeting of the excessive hours he was working. Secondly, Mr Hone specifically told Mr Reynolds at the meeting that he, Mr Hone, was tired. That is referred to at paragraph 67 of my judgment. Thirdly, Mr Hone was still without an assistant manager. That had been a complaint, as I found, from early on in the employment. Fourthly, the employers knew that Mr Hone was making returns showing that he was working 90 hours a week. The employers did not accept that he could in fact be working those hours. But those returns were being made for no financial benefit to Mr Hone and Mr Reynolds agreed in evidence that the reason for making those returns might be that Mr Hone wished to make the point that he needed help. Fifthly, until this employment Mr Hone had a very good work record. So in summary the position was that in April 2000 the employers were confronted with an employee with a good record, who had been asking for an assistant manager from early on in the employment, who was putting in returns showing 90 hours a week, who was refusing to sign the opt out under the Working Time Directive because of his concern at the hours he was working, who specifically complained of excessive hours and who told his superior that he was tired as a result of the hours he was working. That superior and the employer were, moreover, aware of the Working Time Regulations and the purpose of those Regulations."
Those are the reasons that the judge gave for his conclusion.[13]The significance of the Working Time Regulations has been explored to some extent in the course of argument before us. Mr Langstaff has advanced additional reasons for supporting the judgment in his respondent's notice and would, if we had called upon him to do so, have sought to argue that a breach of the Working Time Regulations of itself gave rise to a discrete civil claim against the defendants either for breach of statutory duty or for breach of an implied term of the contract of employment or both. As I say, we have heard no argument on that point; but Mr Brian Langstaff QC has relied upon the Working Time Regulations to some extent as being relevant to the question of reasonable foreseeability and, as is clear from the reasons to which I have just referred, the judge regarded the Regulations as being of some relevanceas well. The significance of the Regulations is that, where an employee refuses to give his consent, an employer may not require the employee to work more than 48 hours per week. The plain and obvious purpose of the Regulations is to protect the welfare and health of employees.[14]As I have said, Mr West submits that there was insufficient material in this case to justify the judge's finding on the foreseeability point. He emphasises that Mr Hone had no prior history of mental illness or of suffering adversely from stress at work. There was no evidence that in general Licensed House Managers were prone to such complaints. Mr Hone had been named 'Pub Manager of the Year' in 1998 and was well used to working long hours. Mr Hone had no absences from work, either before April 2000 or more particularly from April 2000 until the time of his collapse at the end of May. At no time did Mr Hone inform anyone on behalf of the defendants and in particular his immediate superior Mr Kiernan or Mr Reynolds that his health was being affected by his work. Indeed, quite to the contrary the judge accepted Mr Kiernan's evidence that Mr Hone always give Mr Kiernan the impression that he was well, selfconfident and in control and that both before and after the meeting of 19th April. Finally, Mr West makes the point that at the critical meeting of 19th April, Mr Hone made no mention of any adverse effects on his health, on his work or otherwise and the judge found that Mr Reynolds was not aware at or as a result of that meeting that Mr Hone's health was at risk.[15]In my view the judge was entitled to come to the conclusion that he did on the question of reasonable foreseeability. In my judgment the correct test to apply is that enunciated by Hale LJ as her seventh proposition. I do not regard it as being necessary or indeed helpful to have regard to other authority on the issue of reasonable foreseeability. Mr Langstaff has relied upon authorities such as Bolton and Stone [1951] AC 850 , the Wagon Mound (No 2) [1967] 1 AC 617 and Czarnikow v Koufos [1969] 1 AC 350 , as well as Jolley v Sutton London Borough Council [2001] 1 WLR 1082. In her seventh proposition, Hale LJ was encapsulating what she had said at paragraph 31 of her judgment where she said this:
"These then are the questions and the possible indications that harm was foreseeable in a particular case. But how strong should those indications be before the employer has a duty to act? Mr Hogarth argued that only 'clear and unequivocal' signs of an impending breakdown should suffice. That may be putting it too high. But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it ."
This is a clear and workable test to apply. It seems to me that the factors identified by the judge when refusing permission to appeal were ones which he was entitled to conclude were sufficiently plain indications of impending harm to health for a reasonable employer to realise that he should do something about it. In this case, as the judge said, what the reasonable employer had to do was to engage an assistant manager, something for which Mr Hone had been asking for a very long time indeed. It is that feature of the case, the fact that he was complaining about excessive hours and that he was very tired, together with the fact that he was recording himself as working approximately 90 hours per week on a seven day week basis, which entitled the judge to reach the conclusion he did. The reference to 90 hours in the records is of particular significance because Mr Reynolds' immediate reaction to that claim was that it was "nonsense". But the fact that Mr Hone was making such claims indicated either that he was working hours greatly in excess of anything that could reasonably have been expected of him, week in week out, or that he was making irrational entries and in effect making a cry for help. It was this latter possibility that was suggested by Mr Reynolds in his evidence.[16]All of those matters, taken in conjunction with the fact that, as was known by the defendants, the Working Time Regulations impose a requirement of no more than 48 hours per week without consent, were sufficient to justify the conclusion. I would add that, even if I were of a different opinion from the judge, it would not be right for this court to substitute its view and allow the appeal unless we were satisfied that the judge's conclusion was clearly wrong. It is to be noted that in Bolton and Stone , at page 860 Lord Porter said:
"The quantum of danger must always be a question of degree. It is not enough that there is a remote possibility that injury may occur: the question is, would a reasonable man anticipate it? I do not think that he would, and in any case, unless an appellate body are of opinion that he clearly ought to have done so, the tribunal upon whom lies the duty of finding the facts is the proper judge of whether he would or not." (Emphasis supplied)
It is also, I think, worth pointing out that in a very recent decision of this court in London Borough of Islington and University College London Hospital NHS Trust [2005] EWCA Civ 596 , Buxton LJ said in relation to an issue of reasonable foreseeability:
"The level of certainty required for an outcome to be deemed, after the event, to have been foreseeable is to a large extent a matter of impression."
It follows that unless this court is satisfied that the judge has either misdirected himself or has decided the issue of reasonable foreseeability in a manner which is clearly wrong, his or her decision on that point should not be interfered with. For all these reasons, therefore, I would dismiss this appeal.

LORD JUSTICE WALL: I agree.

[18]THE MASTER OF THE ROLLS: I also agree. There is no suggestion by the appellants in this case that the judge misdirected himself as to the law to be applied. Mr West QC for the appellants contends that the judge erred in his application of the law to the facts that he found. In directing himself on the law the judge said:
"A claimant has to establish that injury to his health (as distinct from occupational stress) attributable to stress at work was reasonably foreseeable. To trigger a duty to take steps, the indications for 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."
In so holding he adopted verbatim number 7 of the practical propositions laid down by Hale LJ in Hatton v Sutherland (to which my Lord has already referred). Mr West contends that the judge was wrong to find on the facts that this test was satisfied.[19]What were the indications of impending harm that the judge concluded satisfied the test? He accurately summarised the reasoning in his judgment when refusing the appellant's oral application for permission to appeal. By way of material background he observed, firstly, that the knowledge available to Mr Reynolds was that Mr Hone was working very long hours, Mr Hone himself then complained at the meeting of the excessive hours he was working, and that Mr Hone was still without an assistant manager, that had been a complaint from early on in the employment. Against that background the particular factors identified to the judge that were an indication of a pending risk to Mr Hone's health were that he specifically told Mr Reynolds at the critical meeting that he was tired and that his employers knew that Mr Hone was making returns showing that he was working 90 hours per week -- the employers did not accept that he could in fact be working those hours -- but those returns were being made for no financial benefit to Mr Hone and Mr Reynolds agreed in evidence that the reason for making those returns might be that Mr Hone wished to make the point that he needed help.[20]I go this far with Mr West in accepting that these were far from the most compelling indications that Mr Hone was at risk of succumbing to the stress of his very long hours. But questions of fact-based judgments such as these are essentially a question for the trial judge and this court should only interfere if satisfied that the judge's application of the law to the facts was not open to him on the evidence. I am not so satisfied. Like my Lord I consider that it was open to Judge Graham Jones to reach the conclusion that he did and for that reason I would dismiss this appeal.[21]I would add that while the appeal was arguable, I am a little surprised that it was brought. The claimant was an employee with an outstanding record. It has not been in issue that pressure of work rendered him ill so that he could not continue in his employment. The damages were relatively modest. Having regard to the careful judgment given at first instance I would have thought the defendants might well have felt inclined to have let this matter rest where it lay.[22]MR LANGSTAFF: My Lord, it falls then for me to ask for the costs of this appeal to be assessed if not agreed.[23]THE MASTER OF THE ROLLS: Are we not in a position to carry out an assessment of the costs?[24]MR LANGSTAFF: I would have hoped to have been, but neither party sadly has prepared any schedule, as they indeed should have done.[25]THE MASTER OF THE ROLLS: This is the third occasion on which the parties have not been prepared to provide a schedule so that we could assess the costs. We would have been particularly enthusiastic about that exercise in this case because the first question we would have had to consider was whether the costs were proportionate to what was at stake. If not, we would have had to consider whether leaders were justified having regard to the comparatively small amount at stake. As it is we are not in a position to consider these matters.[26]MR WEST: My Lord, I think in deference to what my learned friend has to say this appeal I think was listed for two days and it may have been misunderstood by both sides that it did not fall within the ordinary rubric of a one day trial.[27]THE MASTER OF THE ROLLS: Be that as it may, we shall have to order that the costs are to be assessed if not agreed.[28]MR LANGSTAFF: I am grateful, my Lord and I am sorry we did not have the schedule as we might and should have done.

Cited in 5 later judgments