MG v North Devon NHS Primary Care Trust [2006] EWHC 850 (QB)

Case No HQ04X03774[2006] EWHC 850 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 th April 2006
Before
THE HON MR JUSTICE HENRIQUES
Between
MGClaimantNorth Devon NHS Primary Care TrustDefendant
Mr Charles Pugh & Miss Hannah Sampson(instructed by Douglas Mann & Co) for theClaimantMr Andrew Hogarth QC (instructed by Veitch Penny) for DefendantHearing Hearing dates: 3 – 7 April 2006
JudgmentThe Hon Mr Justice Henriques:THE CLAIM (IN SUMMARY FORM)
[1]In August 1998 the Claimant MG commenced employment as a health visitor working part time for 30 hours per week for the Defendant.[2]In June 2001 she fell ill with depression due to pressure of work having repeatedly been obliged to cover for a colleague who went off work due to sickness at short notice.[3]On the 17th December 2001 she returned to work on a phased return to work programme and by the end of January 2002 she had returned to her normal duties albeit working reduced hours of 24 hours per week.[4]On the 11th of June 2002 the Claimant learned that her colleague Suzanna Carter was off sick with a long term illness involving a collapsed lung. The claimant telephoned for assistance with the workload and was asked to arrange cover herself. She was only able to obtain cover for one hour per week. She repeatedly contacted or tried to contact her managers. She was only able to arrange for one hour per week.[5]On the 27th of June 2002 she went off sick suffering a severe relapse of her depressive illness.[6]On the 12th of August 2002 the claimant returned to work on a further return to work programme which included an undertaking that she would not be expected to cover any additional caseload for the foreseeable future.[7]On the 1st of October 2002 a colleague Claimant’s Cooper commenced maternity leave and was not replaced by the Defendant. The claimant was under pressure of coping with two workloads and on the 19th of February 2003 she went off sick never to return to work and her employment was terminated on the grounds of ill health on the 4th October 2003. Since the 10th January 2004 she has been in receipt of an ill health retirement pension. She claims damages against her employer for breach of its duty of care in failing to take reasonable steps to avoid exposing her to a health endangering workload.

APPLICATION TO AMEND

[8]Mr Pugh applied at the outset of this hearing to amend the Particulars of Claim in two respects. Firstly to clarify by way of amendment the fact that in February 2003 the Claimant had a further relapse of depressive illness which constituted a psychiatric injury by reason of an unreasonably excessive workload from October 2002 onwards which naturally contributed to the February 2003 relapse.[9]The Defendant was notified of the proposed amendment on 23rd of February 2006. The letter before action dated 19th November 2004 made specific reference to the alleged excessive workload post October 2002 and the resulting illness of February 2003. The substantial allegations of negligence remain unaltered by the amendment. The Defendant was fully aware that allegations of breach of duty were made in respect of both relapses.[10]The second proposed amendment was to include paragraph 12.4A:
‘From October or early November 2002 causing her to cover Claimant’s Coopers workload in addition to her own in breach of the assurance given by Lorna Collingwood-Burke that the Claimant would not be expected to cover any additional caseload in the foreseeable future’
.

GROUNDS OF OPPOSITION TO THE AMENDMENT

[11]The amendments were opposed on the grounds that they disclosed no arguable claim triable in the High Court. Even if the only claim made is arguable it is one in respect of which statute, namely the Disability Discrimination Act 1995 confers exclusive jurisdiction on an employment tribunal.[12]Mr Hogarth, Queens Counsel, submits that the Disability Discrimination Act 1995 confers jurisdiction upon the Employment Tribunal – S (8) (1). The statute prohibits discrimination against persons under a disability by section 4 and imposes a duty to make reasonable adjustments in respect of persons under a disability by section 6. This includes a duty to produce programmes to return a person to work.[13]He relies on Lord Hoffman’s speech in Johnson v Unisys 2003 1 AC 518. At paragraph 56 he said: ‘Part x of the Employment Rights Act 1996 therefore gives a remedy for exactly the conduct of which Mr Johnson complains. But Parliament has restricted that remedy to a maximum of £11.000, whereas Mr Johnson wants to claim a good deal more. The question is whether the Courts should develop the common law to give a parallel remedy which is not subject to any such limit. My Lords I do not think that it is such a proper exercise of the judicial function to take such a step’.[14]Mr Hogarth also cites Lord Nicholls speech in Eastwood v Magnox Electric 2005 1 AC 503 in which he said: ‘I recognise that by establishing a statutory code for unfair dismissal, Parliament did not evince an intention to circumscribe an employees rights in respect of wrongful dismissal. But Parliament has occupied the field relating to unfair dismissal. It is not for the Courts now to expand on common law principle into the same field and produce an inconsistent outcome. To do so would incidentally have the ironic consequence that an implied term fashioned by the Courts to enable employees to obtain redress under the statutory code would end up supplanting part of that code’.[15]I reject Mr Hogarth’s submission for a number of reasons. 1) The Disability Discrimination Act does not purport to exclude High Court jurisdiction for ‘disabled persons’. S 17A provides that a complaint may be presented to an employment tribunal. 2) The present claim does not involve a complaint that the Defendant discriminated against her by failing to make adjustments to her working hours and/or by failing to take reasonable steps to facilitate her return to work. On both occasions when she returned to work namely in December 2001 and in August 2002 most considerate steps were taken and the claimant does not contend that she was placed at any substantial disadvantage in comparison with persons who are not disabled. On the contrary this is a claim for damages for psychiatric injury sustained some time after she had returned to work. 3) It is settled law that disabled persons can bring personal injury actions against employers in the High Court. 4) The reasoning in Johnson v Unisys and Eastwood v Magnox Electric is not applicable in Disability Discrimination cases or stress at work claims since damages recoverable before a tribunal ‘shall be calculated by applying the principles applicable to the calculation of damages in claims in tort’ and thus are not restricted. Further compensation for injury to feelings is available in an Employment Tribunal. It is also to be noted that Lord Steyn at paragraph 45 in Eastwood doubted the correctness of the decision in Johnson so far as it related to the co-existence of the statutory scheme and the common law remedy. Lord Steyn contended only for a prohibition against double recovery. At paragraph 43 he set out the substantial criticism of Johnson by both academic and practising labour lawyers. 5) The aims of the statutory scheme and the High Court jurisdiction are different. The Disability Discrimination Act is not a Health and Safety Act. It is Human Rights legislation intended to outlaw discrimination on the grounds of disability and promote adjustments for disabled persons in the workplace.[16]I am obliged to Mr Pugh for the formulation of these arguments. He had invited the Defendant to take this issue as a preliminary point. The Defendant declined that invitation causing this point to be considered whilst witnesses were waiting to give evidence. It should have been determined in advance of the trial but is without merit. The Defendant objects to the amendment on the more general basis that the claimant’s original case was that the second period of illness was caused by the negligence of the Defendants. It is contended that the medical evidence did not support any significant claim arising from that period of illness and that as a result the claimant now seeks to amend her pleadings to add a claim for illness following her third period of absence as this is the only financially significant claim.[17]Considering the proposed amendments on general principles in my judgment the amendments sought are entirely appropriate. They do not take the Defendant by surprise nor do they in any way prejudice them. The amendments enable the totality of the issues to be resolved between the parties with clarity. They permit justice and fairness to be done between the parties. They reflect the contents of the letter before action. There was in any event reference to the agreement that the claimant would not be expected to cover any additional caseload for the foreseeable future in paragraph 10 of the un-amended Particulars of Claim. The Reports of both Doctors deal very fully with the breakdown in February 2003.

THE MEDICAL EVIDENCE

[18]There was substantial agreement between Professor Trimble and Dr Neal as their joint statement indicates.[19]This was a moderate or moderately severe Depressive Disorder with an onset in about July 2001. The cause was the perception of an excessive workload and interpersonal problems with a colleague at work. The Depressive Disorder was maintained by repeated failed attempts to return to work, inadequate treatment and more recently by litigation anxiety.[20]The relapse in June 2002 was caused by the perception of an unreasonable workload. The incorrect diagnosis of Chronic Fatigue Syndrome (C.F.S.) and/or the resulting treatment was not material to the relapse of June 2002. The diagnosis of CFS was not the effective cause of the June 2002 relapse because the GP treated her with antidepressants and referred her for psychological counselling in keeping with a diagnosis of depression.[21]The relapse in June 2002 was not the material cause of a longer term inability to return to work because she returned to work 6 weeks later. The doctors agreed that a partially treated depressive illness was the material cause of her longer term problems with coping at work. She should have been referred to a Consultant Psychologist after her relapse in June 2002. She will recover within 12 months of settlement of the litigation with psychiatric treatment.[22]There is some lack of agreement as to the employment prognosis. Professor Trimble concludes that she will be unable to return to work in a responsible position in the health service setting, but will be capable of alternative full time work provided she returns in a graded manner with appropriate training. Dr Neal considers she will be fit for some part time employment within a few months of settlement of litigation and a return to work as a full time Health Visitor within two years with a graded return and with training.[23]Professor Trimble’s evidence was to the effect that the mis-diagnosis of CFS was of no significance since she was in fact treated with anti-depressants and the return to work programme was the same as it would have been with a diagnosis of depression. In any event by the 13th July 2001 the GP had diagnosed depression. Professor Trimble was of the view that whether she was diagnosed as suffering from depression or CFS it was appropriate in either situation to encourage a return to work. When it was suggested by Mr Hogarth that she was never fit to go back to work Professor Trimble very positively disagreed. He said ‘The GP thought it right. Those at work thought it right. I consider her depression was better’. When it was suggested her depression was inadequately treated he disagreed saying that she got better and had a recurrence. ‘She was back at work coping. I do not consider her a psychiatric case. She may have had some symptoms but she was apparently recovering. She was coping in that work situation. I have seen no evidence that her work was not up to standard. In June 2002 there would be no reason to believe that her condition would not continue to improve provided her return to work schedule was adhered to. There was no reason to anticipate a relapse’.[24]I accept that evidence. It accords with the agreed memorandum with Dr Neal. It is of course for me to decide whether or not the Claimant was overburdened with work or caused to perceive that she was being overburdened both in June 2002 and February 2003.[25]A point of apparent disagreement between the Doctors was whether the Claimant recovered prior to her return to work in December 2001 and in August 2002 or whether it was a single episode of depression from which she never recovered. Dr Neal took the view that it was a single episode and that attempts to encourage her to return to work were misguided and led to a higher risk of a relapse. From February 2002 there was a perception she improved which he thinks was a mistake. The most important piece of information was that she was not coping at home and that she was socially withdrawn.[26]As to whether this was a single episode of depression with varying degrees of intensity or three separate bouts of depression must remain a matter of speculation which I need not resolve. On either view she was vulnerable to a relapse when she returned to work and both Doctors are agreed that from June onwards she should have been referred by her GP to a Consultant who would have prescribed a more powerful dose of anti-depressants.[27]Having heard both Doctors I am perfectly satisfied that the Claimant was fit to return to work both in December 2001 and in August 2002 subject to the return to work programmes being adhered to and subject to her not being overburdened whilst at work. Whilst she is likely to have benefited from the more aggressive treatment a Consultant would have prescribed in June 2002 she was nevertheless fit to return to work.[28]I must in due course determine whether the claimant was subjected to an unreasonable amount of work or an unreasonably excessive caseload which caused her to suffer her second and third breakdowns.[29]I must also consider whether the failure to refer her to a Consultant psychiatrist in June 2002 caused or contributed to her subsequent breakdown in February 2003. I must also consider whether the mis-diagnosis of CFS caused or contributed to the February breakdown.[30]I must also consider whether the Claimant’s reports to the Occupational Health Department that she was coping at work in late 2002/early 2003 absolved the department from any existing duty of care to the claimant.

THE CLAIMANT

[31]The claimant was born on the 11th of August 1952 and is now 53 years of age. She trained at the Great Ormond Street Hospital as a Registered General Nurse and a Sick Children’s Nurse. Thereafter she worked on the children’s ward at the Royal Berkshire Hospital and thereafter trained as a Health Visitor. She married in 1974 and moved to Bideford in Devon where she worked as a staff nurse and in 1984 obtained a post as a Health Visitor in Ilfracombe. Her marriage broke down in 1982. She met her present partner Mr Gore with whom she had a daughter in 1987. She went to work as a Health Visitor in South Molton in 1989. Later that year she emigrated to South Africa with her three children and Mr Gore returning to Devon in 1998. She was re-employed working out of the same Centre in South Molton from August 1998 working part time 30 hours per week.[32]It was suggested that her first breakdown may have been in some way attributable to a dislike of Mrs Magnall. The claimant rejected that proposition saying that she was just not easy to work with and she questioned some of her health visiting practices. She was asked she said to work full time when Mrs Magnall went off sick but insisted on continuing to work a 30 hour week. The Defendant did not employ any bank staff and did not bring in any one else. It was suggested that she should have compensated for Mrs Magnall’s absence by prioritising various duties. A list exists in the handbook of Essential Work and Important Work and it was suggested that she should have put off when possible the non essential work. That list contains the following work; Accident Follow-up, Antenatal contact, Behavioural Management, Elderly assessments, Public Health, Special Needs Register, TB and Infectious Diseases, and Training Students. The task of delaying and/or cancelling such visits must it seems to me to be a stressful task for a dedicated conscientious health visitor. The visits must necessarily be of great importance to members of the public with high expectations of the Health Service. The Claimant expressed the view that 75% of her work load was essential work. The Claimant stated that she found it difficult to cancel appointments.[33]Various causes or contributory factors of her breakdowns were canvassed in cross examination. She had a hernia operation in May 2002. Her partner and her son Robert had difficulties in 1998 when Robert was at University and on the 5th June 2002 a colleague at work died. I do not regard any of these matters as anything more than typical incidents of life which did not in any way impact upon the mental health of the claimant. They were no more than canvassed by Mr Hogarth and not pursued when the claimant’s twin sister or her partner gave evidence.[34]It is significant that the claimant very readily volunteered the fact that she intended to retire at 60 and had always so intended. I found her to be truthful, caring and most conscientious. I was well able to appreciate the stress she would feel when left to cope single handed and at short notice with the absence of a colleague. Much was made of the hours worked in this case and that in any event the claimant on her return to work programme only ever worked a 24 hour week. It was plain from the evidence of the claimant that the pressure and strain was derived not so much from hours worked as the additional responsibility of having to cope with two caseloads, cancel appointments, ringing round to other centres trying to arrange cover, dealing all the time with the public who were not receiving an appropriate service.[35]The expected complement of staff at South Molton Health Centre was 2 Health Visitors plus a Health Visitor Assistant. The Claimant’s work involved both seeing patients at clinics and carrying out home visits. The clinics were conducted by two health visitors and an assistant. Home visits were carried out by a health visitor alone.

THE FIRST BREAKDOWN (Not subject to any claim)

[36]Prior to June 2001 the Claimant’s Health Visitor colleague was Margaret Magnall. She had a number of periods off work when she was not replaced including one 3 month period for part of which the assistant was also absent. In June 2001 the Claimant had a breakdown and was off sick until the 17th December 2001. The Claimant’s GP Dr Pike diagnosed her with endogenous depression and she was prescribed Prozac. The Claimant discussed her work situation with Dr Pike, in particular the fact that she had been under a great deal of pressure because she had to repeatedly cover for a colleague who was off sick. The GPs notes indicate that he discussed the Claimant’s work and the effects of stress on her health. Throughout the period of absence the Claimant received MED 3 Certificates and between July and December 2001 these stated that the reason for her absence from work was depression.[37]The Claimant was referred to the Defendants Occupational Health Nurse, Jennifer Rafferty and had six sessions with a Clinical Psychologist, Bill Wahl both of whom are employees of the Defendant. Mr Wahl wrote to Dr Pike raising the possibility that the Claimant was suffering from Chronic Fatigue Syndrome. However, Mr Wahl did not dispute that the Claimant was also suffering from depression and he stated that it was not his place, as a psychologist, to diagnose medical conditions. Dr Pike continued to treat the Claimant for depression.

FIRST RETURN TO WORK

[38]The terms are set out in a letter from Jenny Rafferty the Occupational Health and Safety Manager to Jane Punchard who then managed the Health Visitors for South Molton and Chulmleigh Medical Practices. It consisted of Week 1 - two half day sessions, Week 2 – three half day sessions, Week 3 – four half day sessions. ‘I suggest that for all of these sessions, MG works in a supervised capacity shadowing a colleague, and is not responsible for clinical decision making. I would also recommend that for those weeks, MG is placed away from her usual work base (South Molton) and is supernumerary. I have arranged to see MG in 1 month’s time when hopefully we may be able to set a return to work date’. Neither Psychiatrist suggest that was anything other than appropriate.[39]By this time (17th December 2001) Mrs Magnall retired in June 2001. She had a new colleague Suzanna Carter a newly qualified Heath Visitor who worked 36 hours a week and Vicki Snell a Health Visitor Assistant. The Claimant responded well to her return to work programme and by the end of February 2002 she was working 24 hours a week. Ms Rafferty wrote on 28/02/02 to Mrs Punchard informing her of the Claimant’s progress. She stated the need for ‘continued professional supervision’ but made no further appointments with the Claimant. From 1st March until the first week of June 2002 there is nothing to suggest that the Claimant’s performance at work was anything other than exemplary. Her workload was reduced to 24 hours. She did tell her Union representative who was a colleague at Ilfracombe Health Centre that she was having difficulty in concentrating, that she tired easily and was weepy.

THE SECOND BREAKDOWN JUNE 2002

[40]At the beginning of June 2002 the Claimant and her partner went to Tenerife for one week’s holiday. She was able to relax and enjoyed it. Her partner felt it did her good. She returned to work on 11th June to find her colleague Suzanna Carter had gone on long term sick leave. The day before she went on sick leave she had told Ms Punchard that she seemed to have more work than she could fit into her day. At the time the Claimant’s immediate manager Lorna Collingwood-Burke was off sick. The Claimant informed Ms Punchard who was her acting manager that she could not cope with Suzanna Carter’s caseload in addition to her own and stated that she was concerned her health would deteriorate if her workload was increased having regard to her previous illness. The Claimant contends that Ms Punchard did not offer her any assistance and informed her that she would have to arrange cover herself. Ms Punchard did not remember this conversation but specifically did not deny it. She said it was normal for a Health Visitor to try and arrange cover. Mady Nolan a colleague of the Claimant’s from a neighbouring health centre rang Ms Punchard shortly after Suzanna Carter went off sick saying that the claimant would need assistance. She was worried about her. She was displaying symptoms similar to those before her breakdown. Ms Punchard did not deny that the phone call was made saying ‘I expect she did phone me’. She was more than vague as to her response saying that she may have rung Christine Thomas the line manager deputising for Lorna Collingwood-Burke but since she had no files she could not say. There is no evidence that anything was done.[41]The Claimant tried to contact Ms Punchard on other occasions and she tried to contact Christine Thomas leaving messages that she could not cope with the workload. Her calls were not returned. It was not possible for the claimant to order another Health Visitor to come and support her as all Health Visitors were on the same grade. Further she had no authority to engage ‘bank staff’ because of the resource implications.[42]On the 20th of June the Claimant collapsed in tears at work. She went straight to her GP who noted she was depressed and worn out and under ‘unsustainable pressure from work’. According to Dr Pike the Claimant had been clearly but steadily improving and had started to reduce her anti depressants going to alternate days. Professor Trimble in evidence approved of this. Dr Pike commented that returning to work had had a beneficial effect on MG. He wrote to Jenny Rafferty on the 25th of June and spoke to Chris Thomas her stand in line manager. He diagnosed CFS but continued to prescribe anti depressants.[43]On this occasion the Claimant was off work for six weeks. She was not quite as ill as previously – perhaps 75% as bad. She had the same range of symptoms. She was seen by the Occupational Health Nurse but not by any Occupational Health Doctor.

SECOND RETURN TO WORK PROGRAMME

[44]The Claimant returned to work on 5th August 2002. Her manager Lorna Collingwood-Burke had herself returned to work after sick leave. The terms of the programme were confirmed in a letter written by the claimant dated the 9th of August 2002 in which she wrote ‘I should return to work on a protracted programme …………. I should return to work on full salary pro rata to a 24 hour week. I will continue to gather my annual leave. I will receive mentor help from Rosemary Long ……… You have also offered to give me support and that I can continue to receive support from Maggie Sheriff CPN. I will receive caseload support until I am finally back working in my caseload. You will not expect me to cover any additional caseload for the foreseeable future’.[45]The original of this letter was initialled and dated 14th of August 2002 by Lorna Collingwood-Burke to signify her agreement to these conditions who stated that the return to work program was even gentler than the phased return suggested by Occupational Health. On the 6th of August she had a meeting with the Claimant and reached the agreement set out in the letter of the 9th of August and she asked the Claimant to contact her immediately if she had any concerns regarding her return to work or any other issues.[46]The Claimant on the 5th of August 2002 joined a team consisting of Claimant’s Cooper, a newly qualified Health Visitor who worked 37½ hours per week, Brenda Elliott a bank Health Visitor who worked 2 days per week and Elaine O’Flaherty a Health Visitor who worked one day per week. The Health Visitor Assistant was Victoria Snell.

THE SECOND BREAKDOWN (19th FEBRUARY 2003)

[47]Claimant’s Cooper was pregnant and due to take Maternity leave in October 2002. On September 11th 2002 the claimant told Ms Rafferty that she was concerned about the prospect of having to cover her colleagues work whilst she was on maternity leave – the note of Ms Rafferty reads ‘concerned about covering caseloads due to colleagues sickness/maternity leave. Discussed looking after herself and limiting getting involved with managing caseloads due to affecting her own health – discussed limitation’. On 10th October 2002 Ms Rafferty saw the Claimant and wrote ‘Reviewed, working 3 days a week. Coping but feeling fatigued. Looking well, more cheerful, coping with energy levels. Review 6 weeks or before’.[48]On 1st November Mrs Cooper began her maternity leave. By 4th November 2002 no additional staff had been employed to cover Mrs Cooper’s caseload. 45 children who had been removed from the Claimant’s caseload when her hours were reduced to 24 hours from 30 hours were now returned to her requiring her to assume a 30 hour caseload in 24 hours. She also, together with Brenda Elliott had the responsibility of sharing Claimant’s Cooper’s workload which not only involved extra work but extra responsibility.[49]She discussed this shortfall in staffing levels with Lorna Collingwood-Burke who said she did not recollect it. She said that she did not believe that the Claimant was left with Suzanna Carter’s workload. She said South Molton was a 2 Health Visitor practice with each Health Visitor doing a 30 hour week, plus one assistant. Post Claimant’s Cooper the Claimant was working for 24 hours, Brenda Elliott for 15 hours and Elaine O’Flaherty for 7½ hours. That was a total of 46½ hours. She said that the 13½ hour shortfall was being made up by Tom Humphreys who was put in charge of all Health Visitors in the area in late September or early October 2002. He was located at Chumleigh some 10 miles away from South Molton but ‘was giving 15 hours Health Visiting time to South Molton’. ‘He told me he was putting in at least 15 hours a week’.[50]When Mr Humphreys gave evidence he stated that he did tell Mrs Collingwood-Burke that he was putting in 15 hours a week at South Molton. He said that in February 2003 staffing levels were adequate, that the work was carried out and there were no gaps in the service. He helped with clinics, immunisations, child protection, leadership and support meetings. In a most effective cross examination Mr Pugh took Mr Humphreys meticulously through his diary and demonstrated that virtually none of his time spent at South Molton contributed to undertaking the workload of Claimant’s Cooper. It is important to state that no suggestion is made that Mr Humphreys was not working on behalf of the Defendant. His work however was directed towards leadership and meetings as opposed to doing the work of a Health Visitor.[51]In the weeks commencing the 26th November, 2nd December, 9th December no time at all was given to Claimant’s Cooper’s workload by Tom Humphreys save that on Friday 13th December he participated in an Immunisation Clinic which occupied one hour of his time. On the 16th December there was a further one hour and on the 9th January 2 hours. There was a minimal contribution to Claimant’s Cooper’s workload, very much less than Lorna Collingwood-Burke understood he was contributing.[52]During this time there was a change of Health Visitor Assistant. Victoria Snell had held the position for some months and was highly regarded by the Health Visitors. However she was obliged to apply for her own job and was unsuccessful losing out to Gill Gray who was more highly qualified. However she required a period of induction and training which lasted for approximately one month. The Claimant was required to play a part in that training and necessarily during that month there was effectively no Health Visitor Assistant.[53]It is to be noted that when it was suggested to Lorna Collingwood-Burke that there was a gap in Health Visitor services post Claimant’s Cooper she stated that if there had been any gap she would have phoned other colleagues for assistance and failing that she would have phoned bank staff immediately. She was asked about a board meeting decision of the Defendants of the 11th December 2002 when Clinical Services proposed that vacant posts are only replaced and bank staff are only used when essential. This could lead to reduced numbers and/or reducing visits to low priority patients. Exceptions to this to be agreed at Director Level. She stated she was unaware of that decision. I am perfectly satisfied that Lorna Collingwood-Burke was acting in the mistaken belief that Tom Humphreys was effectively making up Claimant’s Cooper’s lost hours.[54]The Claimant had gone from being a part of a Health Visitor Team of 82 hours: Claimant’s Cooper 37.5 hours Claimant 22 hours Brenda Elliott 15 hours Elaine O’Flaherty 7.5 hours to only 47.5 hours: Claimant 24 hours Brenda Elliott 15 hours Elaine O’Flaherty 7.5 hours Tom Humphreys 1 hour In addition for one month there was no Health Visitor Assistant.[55]Mr H evidence was that they now have 42 hours of Health Visitor time to meet the needs of the Community. It may be that some of the reduction in time is attributable to consolidating the immunisation and development clinics a change underway between November 2002 and February 2003. It may also be that Gill Gray the Assistant was able to be more productive than her predecessor, a fact spoken to by Tom Humphreys. On the 19th February 2003 the Claimant went off sick and did not thereafter return to work.

THE KNOWLEDGE OF THE DEFENDANT

[56]The Claimant says she told Lorna Collingwood-Burke that there was a shortfall in cover and was told that she was unable to give the extra cover due to financial restrictions imposed by the Trust. She was told that she was already breaking the Trust rules by employing Brenda Elliott and an instruction had gone out that they were not to employ Bank Nurses because of financial problems. Mrs Collingwood-Burke did not remember such a conversation but agreed it may have taken place.[57]The Claimant also says that she told Tom Humphreys that she was struggling and he did not provide any assistance. She had a further conversation with him a week later when she asked for help to cover an antenatal group and he refused. Mr Humphreys did not recall her saying she was struggling, nor that she asked for his assistance. He said that at no time did he get the impression that she was unable to cope nor that she was under undue pressure. She said she was happy to be working and enjoying her work. He had what he described as support meetings with her on the 30th November 2002, 4th December 2002, 18th December 2002, 8th January 2003, and 4th February 2003.[58]When cross examined as to those meetings it was put to him that these were primarily concerned with staffing levels. He agreed that staffing levels were discussed and there appeared to be some confusion in his mind as to whether these were one to one meetings, or whether Brenda Elliott and Victoria Snell were present. Jenny Rafferty reviewed the claimant on the 9th of November. She said she was coping with work though still fatigued. Seems to have plateaued -? To discuss medication dose (Lustral) and ?? hormone levels with GP. Wants to withdraw socially but pushes herself to please the family due to lack of energy. Ms Rafferty wrote the same day to Dr Pike stating ‘we were concerned that her mood had ‘plateaued’ and she reports still feeling low and tearful at times’. The letter does not entirely accord with the note. On the 19th of December the Claimant telephoned Ms Rafferty’s office and left a message that she was cancelling the meeting because they were short staffed. When asked if that caused her concern she replied that a lot of people cancel meetings because they are short staffed.[59]On the 23rd of January 2003 the note reads ‘Reviewed. Well! Has started her HRT with good effect. Suffered a cold and felt unwell afterwards but improving. Review’. The Claimant questioned the accuracy of this note saying she had not reacted well to HRT. The letter written on 23rd of January to Dr Pike is again more revealing than the note. It states ‘MG was reviewed by me today and it was good to hear she has been feeling better with more energy, albeit she suffered a minor relapse following a cold recently. Since MG reports coping at work as well, I have not made arrangements to review her again, but would be happy so to do should either you or MG feel it necessary. Having gone off sick on 19th of February she was seen by Ms Rafferty on the 19th of March 2003 when she said she felt she was kidding everyone and herself that she was feeling better. On 4th December 2003 the Claimant’s employment was terminated due to medical incapacity.

DUTY OF CARE/FORSEABILITY

[60]I have been assisted by the 16 propositions formulated by Hale LJ in the Court of Appeal judgment in Hatton v Sutherland 2002 1CR 613 expressly approved by the House of Lords in Barber v Somerset County Council 2004 1CR 457 and explained most helpfully for the assistance of trial Judges by Scott Baker LJ in Hartman v South Essex NHS Trust 2005 1CR 782.[61]Liability for psychiatric injury caused by stress at work is in general no different in principle from liability for physical injury, but a Defendant will only be liable for adverse consequences if they were caused by his failure to take precautions against a foreseen or foreseeable danger. In the context of stress at work resulting in a breakdown an employer will only be liable if he ought reasonably to have foreseen and ought properly to have averted that breakdown. He is entitled to assume that an employee can withstand the normal pressures of the job but the duty to safeguard an employee from impending harm to health arising from stress at work is triggered by any contrary indications that would be clear to a reasonable employer.[62]Adapting Hale LJ’s propositions to the present case the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. I must consider whether this employee displayed signs of impending harm to health; whether she had a particular problem or vulnerability; whether she had already suffered from illness attributable to stress at work; whether there have recently been frequent or prolonged absences which are uncharacteristic of the employee; whether the employee or her doctor has made it clear that unless something was done there was a clear risk of breakdown in mental or physical health.[63]Mr Pugh understandably places great reliance on the first breakdown in June 2001 and its effect on the issue of foreseeability. In Walker v Northumberland County Council Colman J held that after a stress induced mental illness the Defendants ought to have appreciated that the plaintiff was distinctly more vulnerable to psychiatric damage and that when support was withdrawn there was significantly greater risk of injury to his health unless the workload could be substantially reduced and that in failing to provide additional assistance the council had acted unreasonably and was in breach of its duty of care.[64]In the present case Mr Pugh relies not only upon the Defendants knowledge of the Claimant’s breakdown in June 2001 but also her express warnings of the risks to her health if her caseload was not reduced and her colleagues not replaced. Notwithstanding the most carefully planned return to work programmes the Defendant failed to comply or maintain them on both occasions.[65]In respect of the June 2002 breakdown the Claimant had telephoned Mrs Punchard saying she could not cope with Suzanna Carter’s workload as well as her own. She made a further phone call to Mrs Punchard and also telephoned Mrs Thomas leaving a message saying she was not coping at all. Mrs Nolan also telephoned Mrs Punchard at or around the same time to express her concern for the Claimant and highlight the need for cover to be arranged and when Mrs Rolfe heard that Suzanna Carter had gone long term sick she was incredibly concerned for MG having to manage two workloads with her health history.[66]As to the breakdown in February 2003 Mr Pugh relies on the two preceding breakdowns coupled with the Claimant’s conversations with both Lorna Collingwood-Burke and Tom Humphreys who were both aware of her previous medical history. The fact of leaving the Claimant to cover additional hours with her known medical history meant that a further relapse was foreseeable.

BREACH OF DUTY

[67]Hale LJ in Hatton v Sutherland underlined the fact that in every case it is necessary to consider what the employer not only could but should have done. He will only be in breach of his duty if he has failed to take steps which would have been reasonable in all the circumstances. ‘The size and scope of its operation will be relevant to this, as will its resources, whether in the public or private sector and the other demands placed upon it’. I have in mind the principles set out in paragraphs 32-34 of that judgment.[68]The alleged breach of duty in respect of the June 2002 breakdown is that the Defendant failed to put support in place immediately Suzanna Carter went off sick. The Defendant did not enlist the help of any bank staff and made no arrangements to cover the work of Suzanna Carter for the period 10-20 June 2002. The Defendant offered no re-assurance of any kind nor any support and gave the Claimant the additional stress of trying to persuade colleagues to help on a gratuitous basis.[69]In relation to the February 2003 breakdown the Defendant failed to arrange any cover for Claimant’s Cooper. The Claimant was expected to cover a significant proportion of her absent colleague’s workload in breach of the assurance that she would not have to cover any additional caseload for the foreseeable future.

CAUSATION AND APPORTIONMENT

[70]The Claimant must show that the employer’s breach of duty caused the Claimant psychiatric injury. As Hale LJ said:
‘Having shown a breach of duty, it is still necessary to show that the particular breach of duty found caused the harm. It is not enough to show that occupational stress caused the harm ….. The employee does not have to show that the breach of duty was the whole cause of his ill-health; it is enough to show that it made a material contribution’
. Where however ‘it is established that the constellation of symptoms suffered by the Claimant stems from as number of different extrinsic causes then in our view a sensible attempt should be made to apportion liability accordingly’.[71]In Allan v British Engineering 2001 1CR 942 the Court of Appeal at paragraph 20 set out the principles of apportionment. These are: i) the employee will establish liability if he can prove that the employer’s tortious conduct made a material contribution to an employee’s disability. ii) the employer’s liability will be limited to the extent of the contribution which his conduct made to the employees disability. iii) the Court must do the best it can on the evidence to make the apportionment and should not be astute to deny the Claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the Defendant’s tortious conduct. iv) the amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award for personal injury.

THE MIS-DIAGNOSIS/FAILURE TO REFER TO A CONSULTANT

[72]It is common ground that this was never a case of Chronic Fatigue Syndrome, but a case of depression. However the Doctors agree that the initial actions of the GP in terms of treating her with antidepressants and referring her for psychological counselling were in keeping with a diagnosis of depression. In June 2002 she should have been referred to a Consultant. However it is not suggested that the treatment was negligent. There is no break in the chain of causation. It is submitted by the Claimant that the diagnosis after the second break down flows from the Defendants negligence in causing that break down and the Defendant must take the victim as he finds her. 23rd JANUARY 2003[73]On that date the Claimant was reviewed and described herself as well. Mr Pugh submits that this in-correct assertion did not materially contribute to her relapse on the 19th February 2003. There is no evidence to suggest that the Defendant would have taken any action if the Claimant had stated she was struggling. On 21st November she had reported that her mood had plateaued and she said she still felt low and tearful at times. No action was taken by the Defendants. Since October 2002 she had complained to management of an overload of work and no action was taken. In Young v Post Office 2002 1RLR 660 May LJ said this: Mr Young was both conscientious and vulnerable and can scarcely be blamed for doing his best to undertake the tasks which he understood where expected of him, when he had made complaints in the past which had not been heeded …… an employee who is known to be vulnerable is not necessarily to be regarded as responsible for a recurrent psychiatric illness if he fails to tell his employer that his job is again becoming too much for him’. THE DEFENDANTS CASE BREACH OF DUTY

THE DEFENDANTS CASE

[74]Mr Hogarth submits: 1. There is no obligation on an employer to devise and introduce a return to work programme. He is entitled to require his employee to perform the duties for which the employee is paid. 2. If an employer does in fact introduce such a programme, then there is no liability upon him because it fails. 3. If an employer does introduce such a programme, then there is no liability on him as a result of that programme increasing the chance of a relapse that is an inevitable consequence of the introduction of such a programme. 4. The liability of an employer arises if the programme which he has devised creates an unacceptable degree of risk to the employee or if he fails to terminate the programme when he knows that it is counter productive and creates a risk of injury which outweighs the advantages to the employee of returning to work.[75]Mr Hogarth relied upon the speech of Lord Rodger in Barber v Somerset County Council 2004 2004 1CR 464 in particular paragraphs 20-30 inclusive.[76]At paragraph 26 Lord Rodger stated:
‘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 and for which he was paid his salary?’
[77]Mr Hogarth also relied on the decision of the High Court of Australia in KOEHLER v CEREBOS . The facts of that case were very different. The Claimant had never sustained any breakdown and the hours worked were within contract. Mr Hogarth was anxious to pray in aid these dicta at paragraph 21: ‘The content of the duty of care which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and any applicable statutory provisions….. What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.[78]Mr Hogarth points out that in the present case the employer had gone out of their way to help a mentally ill employee and find themselves being sued for the consequence of their good deeds. There had been a long course of counselling with a qualified psychiatrist, a very generous return to work programme far in excess of any contractual obligation, numerous meetings with the Occupational Health Department and with the line manager. If liability results in such circumstances it is submitted that employers will in future choose to dismiss every employee who is mentally ill.

THE CLAIMANT’S MEDICAL CONDITION

[79]It is submitted that the Claimant was throughout suffering from an intermittent case of depression and that she was never fit to return to work subsequent to her first breakdown.

THE CLAIMANT’S STATEMENTS AS TO HER ABILITY TO COPE

[80]Reference is made to Hale LJ’s dicta at paragraph 31 of Hatton v Sutherland in which she said: ‘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 he should do something about it.[81]The Defendant relies on: 1) Mr Humphreys evidence that she told him she was coping and did not tell him the contrary was the case. 2) She told Mrs Rafferty in March 2003 that she was coping and acknowledged thereafter that she was kidding everyone including herself and that when she saw her GP she made out that she was a feeling better than really was the case. She was desperate to try and maintain her career and was trying to put on a brave face.

THE PRESENT POSITION

[82]The work of Health Visitors is now undertaken in a satisfactory manner in 42 hours a week. It is submitted that the Claimant’s inability to cope with such a workload after a period of 6 months gentle reintroduction to work establishes that the Claimant was probably never fit to return to work; at the most it establishes that the Claimant was not fit for the normal duties of her post and probably never would be. The Defendant relied upon the evidence of the Claimant’s twin sister Mady Nolan and the Claimant’s partner Tony Gore that in the six month period pre June 2002 the Claimant ‘collapsed’ when she returned home from work. Accordingly it was contended she was never fit to return to work

CONCLUSIONS

[83]1) The North Devon Health Care NHS Trust owed MG a duty to provide her with a reasonably safe system of work and to take steps to protect her from risks that were reasonably foreseeable. 2) I find that psychiatric harm to the Claimant was reasonably foreseeable having regard to the nature and extent of the Claimant’s work. Whilst she was only working for 24 hours per week the responsibility in the sudden absence of her colleague Suzanna Carter who had been working a 5 day week was substantial having regard to the Claimant’s breakdown in June 2001. Deciding which appointments to prioritise, which to cancel, attempts to find alternative staff, the demands of her own duties were such that a reasonable employer should have foreseen a significant risk of psychiatric harm to an employee of known vulnerability. The circumstances of the second breakdown were strikingly similar to the first breakdown save that in June 2001 the Claimant was working a 30 hour week. She had spent a considerable time doing the work of an absent colleague in 2001 and when confronted with the prospect of the same scenario in June 2002 she perceived that she had an unreasonable workload when her colleague went absent. I accept the Claimant’s evidence that she telephoned Ms Punchard twice and Mrs Thomas once and that she received no assistance or support of any kind. Her colleague also telephoned Ms Punchard expressing concern. As to the 2003 breakdown I accept the Claimant’s evidence that she raised the shortfall in cover with her line manager Ms Collingwood-Burke and with Tom Humphreys. I also accept that she told Tom Humphreys that she was struggling. Both were aware of the two previous breakdowns. It is significant that Ms Collingwood-Burke erroneously believed that Mr Humphreys was putting in 15 hours of Health Visitor time at South Molton when his actual contribution to Claimant’s Cooper’s workload was virtually non existent. I bear in mind that at present 42 hours of Health Visitor time suffices for South Molton. The reason for this was not explained in evidence to any extent save that Clinics have been consolidated and the Health Visitor Assistant is more productive. However the Claimant from the moment Claimant’s Cooper left was expected to cover a 30 hour caseload in a 24 hour week in clear breach of the undertaking given by Mrs Collingwood-Burke. She had the responsibility for an extra 45 children. I assessed Mrs G as a very caring and conscientious person who would find the tasks of cancelling appointments and prioritising and abandoning or deferring certain tasks extremely wearing and stressful. The Claimant reported that she was of low mood and tearful to Mrs Rafferty on 21st of November 2002 and cancelled an appointment with her on the grounds of staff shortage on 19th December 2002. With the knowledge of the two earlier breakdowns and the leaving of the Claimant to cover additional hours I conclude that a further breakdown was foreseeable. 3) In my judgment the Defendant was in breach of its duty to the Claimant by failing to take steps to replace Suzanna Carter in June 2002. There were it would appear bank staff available and having regard to the size and scope of the employers organisation it was reasonable to expect that cover would be provided for absent health visitors. Further I find that the Defendant failed to offer reassurance and support of any kind. Christine Thomas had no effective recollection of events and I accept the Claimant’s evidence in this respect. I am satisfied that the Claimant gave a warning of an imminent risk to her health namely to Mrs Punchard (see paragraphs 40 and 41). Between November 2002 and February 2003 the Defendant was in breach of its duty to the Claimant by failing to take steps to replace Alison Cooper. Bank Staff were available. Tom Humphreys could have been specifically required to assume Alison Cooper’s role or an effective part thereof. I find as a fact that the Claimant told Tom Humphreys and Lorna Collingwood-Burke of her difficulties. The Claimant was expected to cover a significant proportion of her absent colleague’s caseload in excess of her own contractual duties. 4) I conclude that the Claimant’s psychiatric injury in June 2002 was not due simply to stress at work but was caused by the employer’s breach of duty. The Claimant had returned to work on the 17th December 2001. She responded well to her return to work programme and by the end of February 2002 she was working 24 hours a week. She was said by the Occupational Health Visitor to be coping with her usual responsibilities and a further review appointment was not felt necessary. She was reducing her antidepressants (appropriately according to Professor Trimble) prior to the breakdown. Dr Pike concluded that returning to work had a beneficial effect on her. He concluded that the worsening of her symptoms coincided with the other Health Visitor being off sick. I am satisfied that the failure to replace and/or provide cover for Suzanna Carter coupled with lack of support caused the Claimant’s psychiatric injury. Had an immediate and obvious replacement been appointed. I conclude that the Claimant would not have sustained her breakdown. Between 5th August 2002 and 1st November 2002 the Claimant worked well and without adverse effects. On 11th September she expressed concern about the prospect of covering her colleagues work. I am satisfied that it was the failure of the Defendant to replace Claimant’s Cooper coupled with the requirement of the Claimant to cover a significant proportion of Claimant’s Cooper’s caseload that caused her breakdown in health in February 2003. 5) I conclude that the diagnosis of Chronic Fatigue Syndrome was not material to the relapse of June 2002. Prior to June 2002 the Claimant’s GP had not accepted the diagnosis of CFS and had only signed the Claimant off work on the grounds of depression. The treatment was entirely appropriate for depression and was not affected by the erroneous diagnosis. Both doctors agree the mis-diagnosis was not material to the relapse of June 2002 nor was it an effective cause of that relapse. 6) I conclude that the diagnosis of Chronic Fatigue Syndrome was not material to the relapse on 19th February 2003. The diagnosis was not negligent nor was the failure to refer the claimant to a Consultant Psychiatrist. She continued to be treated with antidepressants albeit at half the dose a consultant would have prescribed. It is not contended that the GP was negligent. The Defendant must take the victim as he finds her and I conclude that the sole cause of the Claimant’s further relapse in February 2003 was an unreasonably excessive workload. 7) I reject the proposition that the Claimant was never fit to return to work. I consider it very likely that but for the Defendant causing her breakdown in June 2002 the Claimant would have made a full recovery in due course. Professor Trimble’s opinion is that she was on the road to a full recovery but for the June 2002 breakdown. There was no evidence of a genetic predisposition to psychiatric illness. From the 3rd of January 2002 up to the breakdown the GP notes are clear. There was no complaint as to the quality of her work. There was no material sick leave and Dr Pike refers in his letter of 25th June to her steady improvement. I regard the evidence of her ‘collapse’ at home during this period as part of the recovery process as described by Professor Trimble. 8) Whilst the Claimant informed Mrs Rafferty on the 23rd January 2003 that she was well this communication must be considered in the context of all other information available to the Defendant. They were aware of the two previous breakdowns. The Claimant had expressed her concerns about Claimant’s Cooper’s pending maternity leave on 11th of September 2002, she had complained of low mood and feeling tearful on the 19th of November 2002 and had cancelled a meeting on the 11th of December 2002 through staff shortage. I am satisfied she told Lorna Collingwood-Burke and Tom Humphreys of her difficulties and that she was struggling. Her problems were compounded by Lorna Collingwood-Burke’s misapprehension that she was receiving assistance from Tom Humphreys when she was not. I am satisfied that the Claimant gave sufficient warning of an imminent risk to her health sufficient to place the Defendants in breach of the duty they owed to the Claimant. 9) I conclude that both return to work programmes were suitable as originally formulated for a person who was suffering from depression and had Suzanna Carter and Claimant’s Cooper either remained in post or had been adequately replaced upon departure I am satisfied that neither the second nor the third breakdown would have occurred. Immediately prior to Suzanna Carter’s departure the Claimant had made admirable progress (see conclusion 7) and but for Claimant’s Cooper’s departure and the failure to replace her would not have sustained her final breakdown. Whilst the return to work programmes have been described as generous by Mr Hogarth, I have no doubt they reflected the value placed upon the Claimant as a Health Visitor with an exemplary nursing background whose service with the Defendant went back as far as 1984. True it is that the Defendant had the option of dismissing the Claimant but having made the decision to offer her a return to work programme they cannot thereafter complain if they are held liable having failed to adhere to that programme. 10) I find it difficult to determine whether or not the Claimant would have returned to a 30 hour week. On the one hand between August 1998 and June 2001 she did work 30 hours. That was apparently her preferred workload. Between January 2002 and June 2002 she worked 24 hours a week but states that she hoped in time to get fully better and be able to return to 30 hours per week. In October 2002 when Claimant’s Cooper left she accepted a 30 hour caseload albeit only working 24 hours. She never returned to 30 hours prior to her final breakdown. Having regard to her excellent progress in the first half of 2002 (see conclusion 7) there is a good chance that she would have returned to a 30 hour week and I conclude that the likelihood of her doing so was 75%. 11) Vulnerability. Both doctors accepted the fact that those who have suffered a mental breakdown are at risk of doing so again. Professor Trimble’s evidence was that the Claimant would in 2002 have continued to improve and in someone with no history of depressive illness he would have expected a full recovery in 6-12 months. A figure of 60% was put to Professor Trimble as representing the proportion of those with a major depressive order who had suffered a reoccurrence. Professor Trimble stated ‘endogenous’ factors come into that figure. The only factor here was external and absent any stress at work it would have been very low indeed. I don’t think there would be any reoccurrence without stress at work there would have been no first episode. On the other hand Dr Neal described her as highly vulnerable when she returned to work after her first breakdown. Whilst she had been properly treated she was not coping at home and was socially withdrawn. On the other hand she showed a marked improvement in the period January – June 2002 and the return to work was beneficial. To the extent the doctors differed I preferred Professor Trimble’s evidence. I conclude that an appropriate reduction in Damages to reflect the Claimant’s vulnerability following her breakdown in June 2001 to be 20%.

DAMAGES

[84]The sums I would award on a full liability basis are as follows: General Damages for Pain, Suffering and Loss of Amenity £17.500 being mid way in the bracket agreed by both Counsel as appropriate. For Handicap on the Labour Market £12.500. Mr Pugh conceded in argument that the sum claimed was excessive particularly having regard to the Claimant’s age. For Loss of a Chosen Career £5.000. I conclude there is no reasonable prospect of the Claimant returning to work as a Health Visitor and no counter argument has been advanced. As to Domestic Assistance I would allow £4.000. The Claimant’s partner is fit and well and able to undertake a significant proportion of domestic tasks and would have done so I conclude as the non working partner on a gratuitous basis to a greater extent than demonstrated in the Claimant’s schedule. I apprehend that all relevant mathematical calculations relevant to future loss of income and loss of pension will be resolved by Counsel prior to this judgment being handed down. Should there be any unresolved matters I will deal with it prior to the handing down. Will Counsel please draft the appropriate order.