Paterson v Surrey Police Authority [2008] EWHC 2693 (QB)

[2008] EWHC 2693 (QB)

Case No HQ07X02576

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/11/2008

Before

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

(Sitting as a Judge of the High Court)

Between

IAN RICHARD PATERSONClaimant

SURREY POLICE AUTHORITYDefendant

Helen Hobhouse (instructed by Callaghans) for Claimant

John Norman (instructed by Barlow Lyde and Gilbert) for Defendant

Hearing Hearing dates: 13, 14, 15 and 16 October 2008

Judgment

[1]This is in many ways a sad case. The claimant, Mr. Ian Paterson, was employed for many years, in fact from 31 December 1979 until 31 March 2006, by the defendant, Surrey Police Authority (“the Authority”). From 19 August 1985 until he left the employment of the Authority he was the Estate Manager, initially called House Manager, of the site (“the Estate”) at Mount Browne, Sandy Lane, Guildford, Surrey at which the Headquarters of Surrey Police were, and are, located. It is obvious from the evidence which has been put before me that Mr. Paterson was an esteemed and valued employee. His dedication to the duties of his employment and the esteem in which he was held were recognised in June 1997 by the award to him of an MBE for his services to Surrey Police.

[2]In September 2004 Mr. Paterson suffered what in former times would have been called a nervous breakdown. The expert psychiatrists called to give evidence in this action differed in detail as to the technical description of the condition which Mr. Paterson developed. Dr. Michael Isaac, the psychiatrist instructed on behalf of Mr. Paterson, diagnosed that condition as an adjustment reaction with anxiety. Professor Thomas Fahy, instructed on behalf of the Authority, diagnosed the condition as a mixed anxiety and depressive state. However, both Dr. Isaac and Professor Fahy agreed that there was little practical difference between these two diagnoses. The consequence of the development of Mr. Paterson’s condition was that he did not in fact do any work for the Authority after August 2004. What in fact happened was that Mr. Paterson’s father died unexpectedly on 22 August 2004 and Mr. Paterson took some compassionate leave. When that leave came to an end he felt unable to return to his duties, and did not do so. Instead, starting on 10 September 2004, he consulted his general medical practitioner. That set in train a series of consultations and assessments which resulted in Mr. Paterson retiring on the grounds of ill-health with effect from 31 March 2006.

[3]In this action Mr. Paterson sought damages against the Authority in relation to the development of his psychiatric condition. While it will be necessary to return to some of the relevant detail, in essence his complaint was that he developed his condition as a result of having to work long hours to perform his duties as Estate Manager, and, in particular, as a result of having, for much of the period of his service, to be permanently on call out of hours to respond to any actual or perceived emergency. In addition, he complained that the Authority ought to have provided him with residential accommodation away from the Site so as to ensure that when he was not actually on call – which was the position on two nights per week and one weekend per month as from about May or June 2003 – he was not troubled by people telephoning him, or coming to his house, to present him with problems which ought to have been referred to the person who was on call. For the better performance of his duties as Estate Manager Mr. Paterson was provided with residential accommodation on the Estate. Over the years different accommodation was provided. Latterly it was a four-bedroom house with a substantial garden at 1, The Drive (“the House”).

[4]The position of the Authority in relation to the claim of Mr. Paterson was that it had had no reason to suppose, before Mr. Paterson developed his psychiatric condition, that he was at risk of suffering such a disorder, and thus that it was not under any obligation to Mr. Paterson to take any steps to minimise or avoid such a risk. Moreover, in the light of the psychiatric evidence put before me, it was contended on behalf of the Authority that in fact what caused Mr. Paterson to develop his condition was not the hours which he worked or being on call, but the failure of the Authority to provide him and his wife with residential accommodation away from the Site. It was submitted on behalf of the Authority that it was under no duty to provide residential accommodation away from the Site for Mr. Paterson, so that the actual cause of him developing a psychiatric illness was not a breach of duty on its part.

[5]Before coming to the facts of this case it is convenient to consider the principles of law applicable in the case of a claim of this kind, so as to put the facts, when I come to them, in context. The law in relation to claims for damages in respect of psychiatric illness incurred as a result of working conditions

[6]The issues which arise, in principle, in a claim such as that made on behalf of Mr. Paterson in the present case are: first, what was the nature of the duty of care owed by the employer to the employee; second, consequent upon the answer to the first, whether the incurring of psychiatric illness by the employee was reasonably foreseeable by the employer; and, third, was the psychiatric illness which the employee suffered caused by a breach by the employer of his duty of care.

[7]It was common ground between Miss Helen Hobhouse, who appeared on behalf of Mr. Paterson, and Mr. John Norman, who appeared on behalf of the Authority, that useful guidelines in relation to a claim for damages in respect of psychiatric illness incurred as a result of working conditions were to be found in the decision of the Court of Appeal in Hatton v. Sunderland

[2002] ICR 613

in the judgment of Hale LJ at paragraph 43, pages 631 – 632 of the report:- “From the above discussion, the following practical propositions emerge:(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 (para. 22). The ordinary principles of employer’s liability apply (para. 20).

(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para. 23): this has two components (a) injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (para. 25).

(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 (para. 23). 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 (para. 29).

(4) The test is the same whatever the employment: there are no occupationswhich should be regarded as intrinsically dangerous to mental health (para. 24).

(5) Factors likely to be relevant in answering the threshold question include: (a) the nature and extent of the work done by the employee (para. 26). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are the demands being made of 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 (paras. 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from 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 enquiries of his medical advisers (para. 29).

(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 (para. 31).

(8) The employer is only in breach of duty if he has failed to take 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 practicability of preventing it, and the justifications for running the risk (para. 32).

(9) The size and 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 (para. 33).

(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 (para. 34).

(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 (paras. 17 and 33).

(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 (para. 34).

(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 (para. 33).

(14) The claimant must show that the 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 (para. 35).

(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 wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras. 36 and 39).

(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 (para. 42).”

[8]Miss Hobhouse drew to my attention that in Barber v. Somerset County Council

[2004] 1 WLR 1089

Lord Walker of Gestingthorpe, with whose speech the majority of the House of Lords agreed, had commented, at paragraph 65, pages 1109 – 1110 of the report, on the guidance of Hale LJ in Hatton v. Sutherland:- “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 of 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.”

[9]I do not think that it was suggested in the present case that the application of the general principle of which Lord Walker spoke, rather than the practical guidance of Hale LJ, was of any significance. Miss Hobhouse simply desired, quite rightly, that I be aware of the approach taken in the House of Lords to the guidelines enunciated in the Court of Appeal.

[10]As I have pointed out, the main foci of the case for the Authority were that it was not foreseeable that Mr. Paterson would suffer a psychiatric illness as a result of his working conditions in his employment as Estate Manager and that in any event it was not his working conditions which caused him to succumb to the illness, but the failure of the Authority to provide him with residential accommodation away from the Estate. As I have noted, the case for the Authority was that it was under no obligation to provide Mr. Paterson with accommodation away from the Estate. I think that that proposition was accepted by Miss Hobhouse, although she maintained a submission which was put as an allegation of breach of duty at particulars (o) and (p) in paragraph 17 of the Particulars of Claim as:- “(o) Failing to respond adequately, or at all, to the Claimant’s request to be moved to accommodation away from the Estate. (p) Failing to move the Claimant to accommodation away from the Estate.”, or, as she put it at paragraph 68 of her written skeleton argument:- “The Defendants did not prioritise the Claimant’s request to move off site.” How, in practical terms, this complaint, however precisely put, could have been dealt with other than by the Authority providing Mr. Paterson with accommodation away from the Estate I did not really understand. Certainly there was no suggestion that Mr. Paterson wanted to arrange accommodation of his own, entirely at his own expense, away from the Site.

[11]Miss Hobhouse placed heavy reliance in her submissions on the provisions of Working Time Regulations 1998 (“the 1998 Regulations”) and those of Management of Health and Safety at Work Regulations 1999 (“the 1999 Regulations”). In the Particulars of Claim it was contended that the Authority had been in breach of Regulations 4(1) and (2) and 11 of the 1998 Regulations and in breach of Regulations 3, 4 and 6 of the 1999 Regulations. It was pleaded that, by reason of those alleged breaches, Mr. Paterson had causes of action against the Authority for breach of statutory duty. However, in her written skeleton argument at paragraph 58 Miss Hobhouse accepted that a breach of the 1999 Regulations was not actionable as a breach of statutory duty in respect of anything done, or not done, prior to 27 October 2003, on which date, as a result of an amendment to the 1999 Regulations made in 2003, a breach of the 1999 Regulations became actionable. Miss Hobhouse also very properly drew to my attention that Ramsey J had decided in Sayers v. Cambridgeshire County Council

[2006] EWHC 2029

that a breach of the 1998 Regulations did not give rise to a cause of action for breach of statutory duty. She accepted the correctness of that decision. However, she relied upon the decision in Hone v. Six Continents Retail Ltd.

[2006] IRLR 49

in support of her submission that a breach of the 1998 Regulations could be evidence of negligence on the part of the employer in a case in which it was alleged that an employee had suffered psychiatric illness as a result of his or her working conditions. In the end the point seemed to be that, by reason of the provisions of Regulations 4(1) and (2) and 11 of the 1998 Regulations, the Authority should have been astute to consider the possible risks to health of Mr. Paterson after a telephone conversation between Mr. Paterson’s wife, Mavis, and Mr. Christopher Moreton, Director of Finance and Services of the Authority, at about the end of 2002 or the beginning of 2003, to the detail of which I shall come.

[12]The material provisions of the 1999 Regulations upon which reliance was placed were:- “3(1) Every employer shall make a suitable and sufficient assessment of – (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) … for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions … (3) Any assessment such as is referred to in paragraph (1) or

(2) shall be reviewed by the employer … who made it if – (a) there is reason to suspect that it is no longer valid; or (b) there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer … shall make them. … (6) Where the employer employs five or more employees, he shall record - (a) the significant findings of the assessment; and (b) any group of his employees identified by it as being especially at risk. 4. Where an employer implements any preventive and protective measures he shall do so on the basis of the principles specified in Schedule 1 to these Regulations. … 6. Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment.”

[13]The provisions of the 1999 Regulations which I have quoted seem to be vague. There is no definite requirement as to when an assessment for the purposes of Regulation 3(1) ought to be undertaken. It seems that the assessment does not have to be undertaken in any particular form, for example by compiling some sort of document. All that is required, in the case of an employer employing five or more employees, is that the significant findings of the assessment, and any group of employees identified as being especially at risk, be recorded. The form of the required record is not specified. In any event the purpose of the assessment is to consider risks to health and safety to which employees are exposed whilst at work for the purpose of identifying steps to be taken to comply with the requirements and prohibitions imposed by other, unidentified, statutory provisions. Thus what appears to be necessary is to consider any applicable statutory provisions contravention of which would expose an employee to risks to health or safety and then to consider what measures should be taken to avoid contravention. There does not seem to be a requirement in Regulation 3 to consider the health and safety of an employee more generally or to identify steps which might protect the health and safety of the employee, rather than steps to secure compliance with other statutory provisions. In the present case the “relevant statutory provisions” for which Miss Hobhouse contended were the material provisions of the 1998 Regulations, to which I shall come. However, the effect of the position adopted by Miss Hobhouse, I think, was that it was contended that the Authority should have considered the risks to the health of Mr. Paterson if it did not comply with the provisions of the 1998 Regulations.

[14]Regulation 4 of the 1999 Regulations was only material in a case in which an employer had in fact implemented preventive and protective measures. The complaint in the present case was that the Authority had done nothing.

[15]There was no definition in the 1999 Regulations of the expression “health surveillance” used in Regulation 6. The expression does not seem to be a term of art in the English language. It is unclear what precisely the expression was intended to convey. It seems to cover a spectrum running from keeping a friendly eye on an employee to see whether he or she seems to be “under the weather” to insisting that the employee undergo some sort of medical check-up. What in any particular case seems to be required is conditioned by “the risks to their health and safety which are identified by the assessment”. In other words, it appears that an employer is supposed to look out for signs that the health or safety of an employee has in fact been affected by the identified risks. However, there is a lack of precision as to what exactly has to be done.

[16]For present purposes the material provisions of Regulation 4 of the 1998 Regulations are these:- “(1) Unless his employer has first obtained the worker’s agreement in writing to perform such work, a worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days. (2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in paragraph (1) is complied with in the case of each worker employed by him in relation to whom it applies and shall keep up-to-date records of all workers who carry out work to which it does not apply by reason of the fact that the employer has obtained the worker’s agreement as mentioned in paragraph (1). (3) Subject to paragraphs (4) and (5) and any agreement under regulation 23(b) [none of which is presently material], the reference periods which apply in the case of a worker are –(a) where the relevant agreement provides for the application of this regulation in relation to successive periods of 17 weeks, each such period, or

(b) in any other case, any period of 17 weeks, in the course of his employment. ”

[17]It was not in dispute that Mr. Paterson had not opted out of the provisions of the 1998 Regulations.

[18]Miss Hobhouse drew to my attention that in MacCartney v. Oversley House Management

[2006] ICR 510

the Employment Appeal Tribunal had concluded that, as it was put at paragraph 60 of the judgment at page 522 of the report:- “A manager or warden of sheltered accommodation who is required by her employer to remain on call to residents and for that purpose to remain on or close [to] her place of work is “working” while on call even if her employer provides her with a home at her place of work.”

[19]I have no doubt that, on the facts of that case, the decision of the Employment Appeal Tribunal was correct. Miss Hobhouse submitted that the decision had the effect that an employee was to be treated as “working” whenever he or she was on call. I am not sure about that. As a matter of impression I should have thought that the duration of the period of being on call and when in the day it happened – whether a few minutes or a few hours in the middle of what were otherwise working periods or some longer period outside ordinary working hours altogether – and the risk of being called out, were likely to be relevant to whether the employee was “working”, and, perhaps, also whether the employee was required to remain awake. It would seem extraordinary if someone who was a key-holder of premises and liable to be contacted outside ordinary working hours in case of emergency if access was required to the premises was to be treated as “working” 24 hours a day 7 days a week, even if the likelihood of being called out was slight.

[20]Regulation 11 of the 1998 Regulations is, so far as is presently material, in these terms:- “(1) Subject to paragraph (2), a worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period during which he works for his employer. (2) If his employer so determines, a worker shall be entitled to either –(a) two uninterrupted rest periods each of not less than 24 hours in each 14-day period during which he works for his employer; or

(b) one uninterrupted rest period of not less than 48 hours in each such 14-day period, in place of the entitlement provided for in paragraph (1).”

[21]Miss Hobhouse contended that, for the purposes of considering whether the requirements of Regulation 11 had been met in any particular case, it was again necessary to treat periods on call as working time.

[22]I have already mentioned the decision of the Court of Appeal in Hone v. Six Continents Retail Ltd. upon which Miss Hobhouse relied in support of her contention that the provisions of the 1998 Regulations were relevant in considering whether the incurring of a psychiatric illness by an employee was foreseeable by the employer. What exactly the relevance of those provisions was thought by the Court of Appeal to be is somewhat unclear. In the reasons given by the trial judge for refusing permission to appeal he referred to the 1998 Regulations. The leading judgment in the Court of Appeal, with which the other members of the Court agreed, was that of Dyson LJ. He commented on the 1998 Regulations in paragraph 13 of his judgment and again in paragraph 16, having considered the reasons of the trial judge for his decision in favour of the claimant and expressed the view that he was entitled to come to the decision he did:- “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 relevance as 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. … 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. …”

[23]It is difficult to derive much more from those passages than the proposition that a reasonable employer should realise that, the longer the hours an employee works, the more likely it is that he or she will suffer psychiatric injury. Certainly the Court of Appeal did not seek to lay down as a rule of law that an employer who required an employee to work longer than 48 hours per week must be taken to foresee that the employee was at risk of developing a psychiatric illness.

[24]The case for the Authority was that Mr. Paterson was taken outside of the requirements of the 1998 Regulations by Regulation 20. That provided:- “Regulations 4(1) and (2), 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply in relation to a worker where, on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself, as may be the case for –(a) managing executives or other persons with autonomous decision-making powers;

(b) family workers; or

(c) workers officiating at religious ceremonies in churches and religious communities.” It was contended that Mr. Paterson had autonomous decision-making powers and could himself decide during what hours to work. I shall consider the validity of that contention later in this judgment.

[25]I shall come in due course to the facts material to the questions whether the Authority should have addressed, and did address, the risks to the health of Mr. Paterson if he worked in excess of 48 hours per week and/or if he was not provided with a rest period complying with the requirements of Regulation 11 of the 1998 Regulations. It was the case for the Authority that it did in fact consider the risks to Mr. Paterson’s health of the hours which he was working after Mrs. Paterson made contact with Mr. Moreton in December 2002 or January 2003.

The course of Mr. Paterson’s employment by the Authority

[26]Mr. Paterson was born on 28 June 1949. He married his wife, Mavis, on 20 January 1973. Mrs. Paterson is younger than her husband, having been born on 8 July 1953. The couple have two children, both of whom are now adult.

[27]The first employment of Mr. Paterson by the Authority from 31 December 1979 was as a caretaker/cleaning supervisor at the Estate. At that point his contract of employment, dated 11 December 1979, specified, in clause 4, his hours of work as 40 per week. By clause 6a of the contract it was provided that:- “Accommodation at 2 Munstead View, Mount Browne, will be provided for you in connection with your employment as above. If you leave this employment you must give vacant possession of these premises to the Police Authority on or before the last day of the employment.”

[28]Mr. Paterson paid rent for the occupation of the property provided, albeit at what seems to have been less than a market rent. Throughout his service with the Authority he paid rent for the property which he occupied from time to time, but always, I think, less than a market rent for the time being.

[29]The Estate comprises some 50 acres. There are numerous buildings on it, including administration, teaching, residential accommodation, sports facilities and other buildings. The evidence was that the number and extent of the buildings at the Estate had expanded considerably since Mr. Paterson was first employed. A feature of the Estate was that at least some parts of it were operational every hour of the day, every day of the week, every week of the year. Certainly at the present time the central Surrey Police call centre and control room are located on the Estate.

[30]With effect from 24 December 1982 Mr. Paterson moved from his address at 2, Munstead View to another residential property on the Estate, 6, The Firs.

[31]In 1984 a new training wing was opened at the Estate. A consequence of that seems to have been that the post of Caretaker was re-designated as a higher grade, Assistant House Manager. Mr. Paterson was appointed to that position with effect from 1 December 1984. A new contract of employment in relation to that post was produced, dated 12 December 1984. By clause 2 of that new contract it was specified that Mr. Paterson’s normal hours of work would be 36 hours 25 minutes per week, but “Actual hours to be arranged with Chief Superintendant HA”. It was also provided that Mr. Paterson had:- “To reside at 6, The Firs, Mount Browne, as a written condition of employment for the purpose of the better performance of duties, to be vacated on or before the last day of employment. ”

[32]The existing House Manager when Mr. Paterson was appointed to the post of Assistant House Manager was Mr. Bill Redwood. Mr. Redwood retired on 19 August 1985. Mr. Paterson was then appointed to replace him. By a letter dated 3 July 1985 Mr. Paterson was notified of his promotion. The letter included:- “You will commence duties on 19th August, 1985, and your salary will rise to £6555 plus £282 Surrey Allowance. You will continue to reside at 6 The Firs, Mount Browne, as a written condition of employment. There is no other change to your Contract of Employment dated 12th December 1984.” There is no other change to your Contract of Employment dated 12th December 1984.”

[33]A job description relating to the post of House Manager was produced dated 16 July 1987. In paragraph 3 were listed those for whom the House Manager was directly responsible. The list was 1 Assistant House Manager, 2 Assistant Caretakers, 1 Groundsman, 1 Head Gardener, 2 Gardeners, 4 full-time Cleaners and 15 part-time Cleaners. At paragraph 4 were set out the “Main Duties” of the House Manager:- “1. Seeks to obtain maximum efficiency from the Headquarters cleaning establishment. Regularly plans and reviews work schedules and closely monitors staff performance. 2. Responsible for the preparation of weekly time sheets for all Headquarters domestic and grounds staff and submits returns for annual leave and sickness when necessary. 3. Organises the upkeep of the 50 acres of grounds, comprising playing fields, gardens, bowling green, car parks, and tennis court through the Head Gardener and grounds staff. 4. Formulates programmes for residential accommodation requirements, including the allocation, furnishing and cleaning of rooms and the distribution of room lists. 5. Ensures that the heating, lighting and other energy requirements of the complex are met and all boilers and air conditioning units are regularly maintained. 6. Ensures that the Headquarters complex is provided with 24 hour cover in the event of an emergency. 7. Responsible for the maintenance and day to day caretaking of the Headquarters Training Complex and Sports Pavilion, comprising residential accommodation, offices, reception areas and squash courts. 8. Procures and maintains stocks of cleaning materials, bed linen and bedroom furniture and domestic equipment according to budgetary provision and certifies invoices for payment. 9. Prepares draft items for the annual revenue estimates for the purchase of grounds maintenance machinery and equipment. 10. Ensures that grounds maintenance equipment is properly maintained and keeps an inventory of equipment held. 11. Receives and supervises contractors carrying out work within the Headquarters complex on behalf of the County Architect. 12. Conducts interviews and recommends the appointment of new staff. 13. Makes recommendations for building improvements to the Headquarters Complex for inclusion in the annual Building Maintenance Programme. 14. Services vending and change machines, ascertains retail prices of vending goods and supervises the collection of the same. 15. Ensures the efficient disposal of all confidential waste. 16. Co-ordinates and supervises arrangements for internal office removals. 17. Any other duties which the Chief Constable may from time to time decide.”

[34]Thus, as appears from the sixth of the list of “Main Duties”, at that stage it did not seem to have been envisaged that Mr. Paterson personally would provide 24 hour cover of the Estate, but only that one of his duties was to arrange for that to be provided. However, there seems to have been a degree of ambiguity about the position, for in a “Job Evaluation Request Form” dated 6 August 1987 requesting a re-evaluation of the post of House Manager the reasons for an evaluation were stated as:- “1. The recent addition of a purpose built training wing and a sports pavilion at Police Headquarters has considerably increased the responsibilities of the House Manager, particularly in the areas of caretaking and the programming of accommodation arrangements. 2. The House Manager ensures that the Police Headquarters complex is provided with 24 hour cover in the respect of an emergency, deputised only by the Assistant House Manager.”

[35]In a memorandum dated 16 November 1987 on the subject of “Call Out” Mr. Paterson wrote an account of what he actually did:- “I spend two hours per evening supervising the evening cleaners and cleaning the stores and building and maintenance offices. I also fill in for any of the evening staff that go sick or are on annual leave. I claimed for approx. 100 hours of over-time in the past ten months on call out for many reasons, Flooding, Heating, Lighting, Failure of Generator, Supervision of Works on Site at weekends. The above does not include the time spent on call out for jobs that take less than an hour of my time for example re-setting a boiler for heating, dealing with some one locked out of their room or taking a delivery when stores are shut.”

[36]The picture thus seemed at that time to be that Mr. Paterson’s recorded overtime for call-outs out of hours amounted, on average, to 10 hours per month, or something a little less than 2½ hours per week. His account shed no light on the times of day at which he was called out, or the balance as between evenings and weekend daytime.

[37]In a letter dated 12 February 1988 to the Head of Personnel Services of Surrey County Council the Force Personnel Officer of the Authority wrote about what was called a “Stand-By Payment Scheme”. The letter included this passage:- “The House Manager and Assistant House Manager are provided with accommodation for which an abated rent is paid in recognition of the reasonable expectation of being called-out during non-working hours. Not withstanding [sic] this, the Assistant House Manager’s personal circumstances result in the House Manager incurring the burden of call-out beyond a reasonable level. In recognition of being paid a stand-by payment the House Manager will undertake an obligation to ensure his availability for a minimum of 26 weeks out of a 52 week period. It is however likely to exceed this level and in recognition that the current post holder will be undertaking a level of availability beyond that which would be reasonably expected the scheme provides for a stand-by supplement of 15%. As with other stand-by schemes operating within the Force, any call-out during the stand-by period will be paid in accordance with the APT & C Scheme of Conditions of Service. Both these schemes are consistent with the remaining schemes currently applied within the Force. Payments under the above two schemes are to become effective from 1 March 1988 therefore, if you have any comments on the enclosed please can we discuss them at an early date so that the implementation date can still be met. I would like to comment that the Assistant House Manager is currently excluded from the scheme, however, should there be any change in the current circumstances the appropriateness of the scheme will be reviewed in the light of those changes.”

[38]Miss Hobhouse drew attention to, and relied quite heavily upon, the references in that letter to “the House Manager incurring the burden of call-out beyond a reasonable level.” The author of the letter was not called to give evidence. The letter itself contained no indication of what was meant by the expression “a reasonable level”. However, from the facts that what the letter was about was the making of a stand-by payment for holding himself available to be called out, if necessary, and the making of a further payment in the event of being called out, it would seem that what the author meant was that the burden of call-out was beyond the level which would be reasonable without making a stand-by payment for holding oneself available and a further payment if actually called out.

[39]A document entitled “Stand-By Arrangements – House Manager” was put in evidence. The document was undated, but it seemed to relate to the arrangements described in the letter dated 12 February 1988. It included:- “2. A ‘Stand-by Duty’ shall cover all out-of-hours over a period of seven days commencing at 4.45 pm on a Monday. 3. The House Manager shall undertake ‘Stand-by Duties’ as a condition of employment and will be required to undertake a minimum of 26 weeks of stand-by per year on the basis of being the sole participant in the scheme. 4. As recompense for undertaking stand-by duties on the basis set out above, Stand-by Officer shall receive a supplement of 15% of the maximum spinal column point of the post’s current grade. 5. Stand-by duty of less than one week shall qualify for payment at the following proportion of the weekly rate: Mondays to Fridays 3/29ths per day Saturdays 6/29ths per day Sundays 8/29ths per day 6. Stand-by Officer required to undertake stand-by duty on a Bank or Public Holiday shall be granted compensatory leave of absence in accordance with paragraph 36(3) of the APT and C Scheme of Conditions of Service. 7. Call-out whilst on stand-by duty will qualify for payment in accordance with paragraph 38 of the APT and C Scheme of Conditions of Service. In the event of a lengthy call-out between midnight and normal starting time on a normal working day appropriate recuperative time off may, at the discretion of the supervisor, be granted on that day by substituting a period of stand-by duty for an equivalent period of normal duty. 8. During stand-by, a Stand-by Officer must remain in telephone contact with Police Headquarters, or not more than ten minutes away from a telephone whilst contactable on a supplied paging device, and be immediately available for call-out.” Mondays to Fridays 3/29ths per day Saturdays 6/29ths per day

Sundays 8/29ths per day

[40]A copy of the document which I have quoted was sent to Mr. Paterson under cover of a letter dated 18 March 1988 written by the Force Personnel Officer. Mr. Paterson signed a copy of the letter to indicate that he agreed to participate in the scheme in accordance with the terms which I have set out.

[41]With effect from 1 January 1989 the post of House Manager was re-named Estate Manager. The post was re-evaluated and a salary increase was decided. A job description of the re-named post was prepared. That included this reference to stand-by duties:- “The postholder is required to be on standby in the event of an emergency at Headquarters on a 75% basis. For this reason, a police house is provided within the complex at a subsidised rent.”

[42]In 1991 the Authority, according to the oral evidence of Mr. Paterson before me, decided to undertake a pilot scheme using what was called “The Fitech Stress Counsellor”. As Mr. Paterson understood it, the Personnel Department asked each operational department to nominate individuals to participate in this pilot scheme. He was nominated and did participate. It was unclear how he came to be chosen. His own assumption, he told me, was that whoever nominated him considered that he was at risk of suffering stress. He did not suggest that he was actually suffering from stress at the time he was selected to participate. The outcome of his participation was that a booklet (“the Fitech Booklet”) was produced specific to him. A copy of the Fitech Booklet was put in evidence. It included these passages:- “It seems that your levels of stress are quite high at present. Sometimes, people who are stressed don’t want to be burdened with even more work … like reading this booklet. However, we trust it will be of interest and help to you. … INTRODUCTION Over the next few pages, we will give you some information about SIGNS of stress … and whether you seem to be showing them. We will also give you feedback on the SOURCES of your stress. …. SIGNS OF STRESS A central component of stress is “bodily tension”. So far as this is concerned, your replies suggest that you’re noticeably affected. … Judging by your scores, you are experiencing a lot of anger at the moment … which must be unhelpful at times. … .. things seem to be getting you down … you appear to be moderately discomforted. … We notice that your alcohol intake is of some concern to you. … You seem to be concerned about [unhelpful] habits. The things you mentioned were:-• Being unhappy about your eating habits

• Drinking more than is good for you

• Wasting too much money … Stress may be increased when we feel we cannot CONTROL the outcome of events. It is intensified when we cannot PREDICT what’s going to happen next. … Here are the aspects of your personal life which have been causing you concern over recent weeks. [The most important were the “fit” between work, and home life my looks, my personal appearance my state of health not being able to do something I really enjoy] … The issues which have been affecting you [at work] include:- [The most important were problems with my manager people not pulling their weight] … You seem to be uneasy about the following [as to where I fit in in the organisation] [The most important were being pulled in too many different directions at work being undertrained to do my work confidently] …” INTRODUCTION SIGNS OF STRESS

• Being unhappy about your eating habits

• Drinking more than is good for you

• Wasting too much money [The most important were the “fit” between work, and home life my looks, my personal appearance my state of health not being able to do something I really enjoy] The issues which have been affecting you [at work] include:- [The most important were problems with my manager people not pulling their weight] [The most important were being pulled in too many different directions at work

being undertrained to do my work confidently]

[43]The Fitech Booklet also included a lengthy section entitled “Managing Your Stress”.

[44]A copy of the Fitech Booklet was provided to Mr. Paterson himself. Another found its way onto his personnel file. While Mr. Paterson told me that he had read his copy, and that he showed it to his wife, it does not appear that he took any steps as a result of it. He told me that, when he read the Fitech Booklet, he thought that some parts of it applied to him, but not others. It seems that in fact the Fitech Booklet was put to one side and forgotten until this action. Certainly on the Authority’s side there was no indication that any steps of any sort were taken in reaction to it.

[45]By a letter dated 28 October 1991 Mr. Paterson was offered the opportunity of occupying the House in place of 6, The Firs. He accepted that offer by letter dated 31 October 1991. He moved to the property on 9 December 1991.

[46]Towards the end of 1994 a new stand-by scheme was agreed between the Authority and the relevant trade union, Unison. It was initially proposed that the new scheme should apply to Mr. Paterson. However, as there was no one other than Mr. Paterson in fact providing stand-by cover for the Estate, it was agreed between him and the Authority, and evidenced by a letter dated 2 November 1994 written to him by the Force Personnel Manager, that his existing arrangements would continue on an individual case basis.

[47]At the end of 1998 the basis upon which Mr. Paterson was remunerated in respect of the services which he performed as Estate Manager was modified. In place of a basic salary, a stand-by payment for each occasion upon which he made himself available to undertake stand-by duty, and overtime payments in respect of time spent in response to call-outs, his basic pay, stand-by payments and overtime were consolidated. According to a letter dated 21 December 1998 written to Mr. Paterson by Jacqui Hedges, Director of Finance and Services of the Authority at that time, and counter-signed by him on 2 February 1999 to record his agreement, instead of a basic salary of £19,887 per annum, stand-by payments amounting to £2,896.80, and overtime payments running at a level of about £7,000 per annum, he was thenceforth to be paid a salary of £30,867 per annum.

[48]The contractual arrangements between Mr. Paterson and the Authority did not change between the end of 1998 and him leaving the employment of the Authority, save that the actual salary paid was increased from time to time.

[49]It appears that during the course of his employment by the Authority Mr. Paterson was almost never ill prior to 2001, although it is right to say that the lack of evidence of ill-health in this period may reflect the inadequacy of the records to an extent. However, an “Employee Sick Pay Record” was put in evidence which covered the period April 2001 to the date of him leaving. In that period the entries prior to September 2004 were:- 23.04.01 – 26.04.01 4 days absence Chest infection 10.07.01 – 12.07.01 3 days absence Dental treatment 09.10.01 – 09.10.01 1 day absence Upset stomach 07.01.02 – 12.01.02 6 days absence Cold 25.02.02 – 11.03.02 15 days absence Cold 01.07.02 – 01.07.02 1 day absence Stomach upset 01.04.03 – 04.04.03 4 days absence Flu 07.04.03 – 09.04.03 3 days absence Flu 29.09.03 – 30.09.03 2 days absence Upset stomach 21.06.04 – 21.06.04 1 day absence Migraine Other than the absence of 15 days in February/March 2002, which was the subject of a certificate issued by his general medical practitioner, all of the periods of ill-health which I have noted were the subject of self-certification by Mr. Paterson – that is to say, he gave the Authority the reason for his absence.

[50]The Authority had in place from at least 2001 a system under which a person absent by reason of sickness had a meeting with his or her line manager on his or her return to discuss the ill-health and its implications. A printed form of “Sickness Monitoring/Return to Work Meeting” was produced. That form set out in the printed part the format to be followed on a Return to Work Meeting. It included:- “Responsibility Discuss any action needed. It may be that the sickness was a result of another factor or recurring and that something can be done to prevent such sickness again.”

[51]The printed form also contained a space for “Comments” and provision for it to be signed by the staff member concerned, as well as by the line manager.

[52]No comments were recorded on the printed forms relating to Mr. Paterson’s return to work on 27 April 2001or that on 10 October 2001. On his return to work on 12 January 2002 it was recorded that, “Caught cold from family. Took sensible amount of time to recover.” After his next bout of absence it was recorded on his return to work on 1 March 2002 that, “Ian and I spoke at length about his sickness record. Ian has a very responsible position which exposes him to all weather conditions and increases his propensity to illness.” The only other comments recorded on a “Sickness Monitoring/Return to Work Meeting” form were those set out in a document relating to his return to work on 10 April 2003:- “Following Ian’s illness, IP and CM [Christopher Moreton] have agreed to implement a plan to provide cover to the site in addition to IP.”

[53]I shall return to the discussion in April 2003 and the circumstances which led up to it. First, however, it is material to record that it was Mr. Paterson’s evidence before me, in a document dated 19 February 2005, apparently produced for the benefit of his solicitors, that:- “I had been experiencing cold sweats at night and was feeling exhausted both mentally and physically. I took to my bed for three days. I just couldn’t face work. When I returned to work and had to fill in a reason for my sickness self certificate, I rationalised to myself as to the reasons why I had been off work. I knew that for sometime, the constant demands of my work, the never knowing if or when I was going to be called out. Never having a time when work didn’t encroach on any activities I was engaged in whether with my family or friends. Never having a real break away, living constantly on and with my work was seriously getting to me. So I put down on my certificate “stress” as the reason why I had been absent from work. There was no response from either my line Manager of the time nor HR.”

[54]The self-certification form of which Mr. Paterson spoke in that passage was not put in evidence. The information which it was said to contain was not noted in the “Employee Sick Pay Record” relating to Mr. Paterson for the period from April 2001. At paragraph 21 of his first witness statement made for the purposes of this action, dated 21 December 2006, Mr. Paterson put the timing of the self-certification in question at 2003. Mr. Moreton was the Director of Finance and Services of the Authority at that time, having been appointed such with effect from 1 October 2001, and he was Mr. Paterson’s line manager. It was not suggested to him in cross-examination that he was, or should have been, aware of the alleged self-certification form or its contents.

[55]There is every reason to suppose, and I find, that the alleged self-certification in which Mr. Paterson recorded himself as suffering from stress never existed.

[56]Miss Hobhouse, on behalf of Mr. Paterson, relied heavily upon two matters as specifically putting the Authority on notice of the fact that Mr. Paterson was actually suffering from stress prior to his breakdown. One was the alleged self-certification form mentioning stress. The other was a telephone conversation which took place between Mrs. Paterson and Mr. Moreton in December 2002 or in January 2003. There was no dispute that such a conversation took place, but the evidence of Mrs. Paterson and that of Mr. Moreton differed as to what had been said. In order to explain my conclusions in relation both to the alleged self-certification form and the telephone conversation it is convenient to consider together the evidence relevant to those conclusions.

[57]The first material evidence is that of Mr. Paterson himself as to his position during the course of his employment up to September 2004 concerning disclosure of the fact that he was suffering from stress.

[58]At paragraph 7 of his second witness statement, dated 13 May 2008, made in response to the witness statement of Mr. Moreton, Mr. Paterson said:- “I am now aware that Mavis asked Chris Moreton to keep her conversation with him confidential. When Chris Moreton and I had my return to work meeting in April 2003 I do recall being pretty surprised that he raised the question of finding me some help to deal with the amount of hours I worked. It was the first time anyone at SPA had shown any concern for the amount of hours that I was working with a view to doing something to reduce them. I had just come back from work having been off because of flu. I am sure that I would not have admitted to Chris Moreton that I was suffering from stress and that I told him I had flu. Admitting to Chris Moreton that I was suffering stress was not something I would do. My recollection is that when Chris Moreton suggested that we should do something to reduce my hours my response was along the lines of “ok, but how and who is going to do it?”. We discussed who could be involved and Norman Isaac was the only person who could fulfil the role. It needed to be someone who either lived on site or nearby and who knew the layout of Mount Browne (MB) and the buildings. …”

[59]Obviously, if Mr. Paterson would never have admitted to Mr. Moreton that he, Mr. Paterson, suffered from stress, it is improbable in the extreme that he completed a self-certification form containing precisely that information. Moreover, the occasion of which Mr. Paterson spoke in the passage quoted occurred on his return from the first period of ill-health in 2003, and his evidence there was that he specifically told Mr. Moreton that the cause of the ill-health had been influenza.

[60]Later in his second witness statement, at paragraph 11, Mr. Paterson said:- “I did not confide in Mavis that I was suffering from stress. It is not something I would do. I did not confide in Chris Moreton that I was suffering from stress for the same reason. I did know myself that I found my work stressful however I knew that my job required me to work these hours and it was clear that those were what SPA expected of me. No one had ever said otherwise until I saw Chris Moreton in April 2003. I was pre-occupied by my work. I think that I had no choice. The nature of the overtime and the effect of the on call on top of that meant that my work was always part of my daily life – even when we were on holiday I had my pager with me because there was no one else at Mount Browne. It meant that when I was on holiday I would be thinking about work. It was always the case that the day before I came to work I would be worrying about what would be there to await my return. It is difficult to say exactly when I came to the conclusion that my work was stressful. It was something that built up.”

[61]If Mr. Paterson would not confide in his wife or in Mr. Moreton that he was suffering from stress, producing a self-certification form recording exactly that would have been extraordinary.

[62]Mr. Paterson’s evidence in cross-examination was entirely inconsistent with him having produced the self-certification form which he alleged, but consistent with his evidence in his second witness statement which pointed to the conclusion that he would never have said to his wife or to his employers in any form that he was suffering from stress. He was asked about his sickness record, to which I have referred. He accepted that there was no mention of stress in it before September 2004. His explanation for that was that that was because he had not known himself before that date what he was suffering from, and so had just put down on a self-certification form what he felt the cause of his illness on any particular occasion had been. However, he maintained that he had completed a self-certification form recording stress and contended that there must be an entry missing from his sickness record. Later in his cross-examination he accepted that he had not in fact had any stress problems before 2004, and that he had not seen his breakdown coming. He said that his wife had felt that the pressures of his work were putting him at risk, and had said so, he thought in about 2003 before Mr. Isaac started helping with stand-by duty. His reaction then, he said, was to say to his wife that what he was doing was what the job required, what he was contracted to do, and he had to carry on with it. He told me that Mrs. Paterson had not suggested that he see a doctor, and that, while he took seriously what his wife had said, the work was the job he did and therefore he had to do it. Mr. Paterson said that he did not tell anyone about his anxiety attacks until he felt that he could not return to work in September 2004. He accepted that he had consulted a doctor in connection with obtaining a sickness certificate in 2002 but had not mentioned any anxiety attacks because he did not put a great deal of importance on them.

[63]Later again in his cross-examination Mr. Paterson told me that you could only tell someone what you know, and that, as he did not know he was suffering from extreme anxiety and stress, he could not tell anyone. He said that he never told Mr. Moreton about anxiety attacks, although he had formal meetings with him about once a month and could speak to him whenever he wanted. Mr. Paterson accepted that he had direct access to the Human Resources department of the Authority, and that he knew that the Authority had an occupational health adviser and also a confidential telephone line staff could use. He said that he was on good terms with the Chief Constable, at that time Mr. Denis O’Connor, but chose not to mention to him that he was suffering from stress. The only time Mr. Paterson discussed his lifestyle with a doctor, he told me, was after his breakdown. Towards the end of his cross-examination Mr. Paterson repeated that he was admitting to no one that he was suffering from stress, not even to his wife.

[64]I accept all of this evidence of Mr. Paterson except the contention that he completed a self-certification form at some point in which he mentioned that he was suffering from stress. Any such declaration would have been totally inconsistent with his other evidence.

[65]The position of Mr. Paterson as revealed by his evidence to which I have referred was, in summary, that, whatever symptoms he was suffering from, he either did not recognise, or was not prepared to acknowledge, that they were referable to stress or anxiety. Moreover, he certainly did not discuss those symptoms, and never would have discussed them, with his wife or anyone at work. That evidence is important when one comes to consider the evidence of Mrs. Paterson in relation to her conversation with Mr. Moreton in December 2002 or January 2003.

[66]At paragraph 16 of her first witness statement, dated 21 December 2006, Mrs. Paterson said:- “The idea of phoning Ian’s boss had been something I had been struggling with for a long time, it was a build up of all of these things that I was witnessing first hand every day and most nights. I knew that Ian would not appreciate my interference, but I was getting more and more anxious about Ian’s state of health. Over the years it had become an increasing problem for Ian, in that whenever he was ill he could not get complete rest as he was constantly disturbed by queries that many times meant that he had to physically get out of bed and go to work. When this happened at night time, which it constantly did, this meant that he was taking longer to recover from illnesses. It was also taking its toll on Ian’s patience and temper, which inevitably spilled over at home. I was convinced that if the level of Ian’s work demands continued as they were then he was heading for serious health problems. All this I conveyed in a telephone call to Chris. I also mentioned that I believed it was wrong for anyone to have to be on call 24/7 on top of working evenings and most weekends and that I was sure that it contravened current working legislation. I mentioned that this had a very bad detrimental effect on our home life. I also said that I would not tell Ian of my conversation with him as I was not sure in Ian’s current state of mind how he would react.”

[67]In cross-examination Mrs. Paterson told me that she had been anxious about approaching Mr. Moreton, whom she did not know. She said that she did not think that most men would appreciate their wives going to their boss and saying that their husband was not coping. She told me that she had a fear that, as their house was attached to Mr. Paterson’s job, if she rocked the boat, they might lose the house.

[68]Mr. Moreton’s evidence about the conversation which he had with Mrs. Paterson in December 2002 or January 2003 was set out at paragraph 20 of his witness statement:- “I do remember speaking to Ian’s wife, Mrs. Paterson. My recollection is that she was worried about Ian’s attitude to work but she spoke to me only on the basis that I would not mention anything to Ian. This made my position difficult. I did not take minutes of my discussion with Mavis, since this was a confidential meeting and informal. She explained to me the impact that Ian’s attitude to work was having on his private life. I do not recall the specific words she used but I remember the impression that it was Ian’s oncall responsibilities that she felt was intruding in their private life.”

[69]In cross-examination Mr. Moreton accepted that the conversation in question had been nearly six years ago, but that his main memory of what had been said was that what Mrs. Paterson had been talking about was the impact on their family life when Mr. Paterson was on call, and that being called out was inconvenient for their domestic arrangements.

[70]I have to say that I was very impressed by Mr. Moreton. Not only am I completely satisfied that he was doing his best to assist me by his evidence, which I accept without reservation, but he struck me as a thoroughly nice and kind person. I am sure that, had there been any suggestion by Mrs. Paterson in their telephone conversation that Mr. Paterson’s health was suffering or was at risk of doing so, Mr. Moreton would have responded promptly by seeking to investigate the problem and to deal with it. Mrs. Paterson herself, at paragraph 15 of her first witness statement, spoke of Mr. Moreton telephoning several times and leaving messages of concern when Mr. Paterson was ill over Christmas 2002. Subsequently, as I shall explain, Mr. Moreton went to quite a lot of trouble to try to accommodate Mr. Paterson in his wish to move off the Estate.

[71]In the result I prefer the account of Mr. Moreton as to the telephone conversation with Mrs. Paterson to that which she gave, to the extent that they differed.

[72]The upshot of this evidence, as I find, is that neither Mr. Paterson nor Mrs. Paterson expressed any view to Mr. Moreton, or anyone else acting on behalf of the Authority, before September 2004 that Mr. Paterson was suffering, or might be suffering, or might be at risk of suffering, stress as a result of his duties under his contract of employment with the Authority.

[73]Some insight into what those duties involved in practice was given by the production in evidence of time records relating to Mr. Paterson which he had entered on computer at the request of the Authority. It seems that Mr. Paterson had made entries from sometime in 2001. However, the entries which were available and put before me covered the period 10 November 2003 to 2 January 2005. In respect of the period commencing 10 November 2003 and ending on 22 August 2004, the date of the death of Mr. Paterson’s father, the recorded weekly hours were:- Week commencing Hours & minutes 10 November 2003 21.00 17 November 2003 56.00 24 November 2003 52.45 1 December 2003 53.15 8 December 2003 52.50 15 December 2003 33.20 22 December 2003 0 29 December 2003 0 5 January 2004 53.30 12 January 2004 57.20 19 January 2004 56.35 26 January 2004 53.45 2 February 2004 53.30 9 February 2004 42.50 16 February 2004 9.30 23 February 2004 57.55 1 March 2004 54.25 8 March 2004 54.15 15 March 2004 54.15 22 March 2004 53.45 29 March 2004 43.00 5 April 2004 0 12 April 2004 0 19 April 2004 53.05 26 April 2004 54.50 3 May 2004 59.15 10 May 2004 52.25 17 May 2004 55.00 24 May 2004 51.25 31 May 2004 42.30 7 June 2004 54.55 14 June 2004 56.35 21 June 2004 32.20 28 June 2004 42.25 5 July 2004 53.35 12 July 2004 54.05 19 July 2004 53.15 26 July 2004 56.05 2 August 2004 57.40 9 August 2004 0 16 August 2004 31.15

Week commencing Hours & minutes

[74]The total of the hours set out in that table is 1,774 hours and 25 minutes. The average weekly number of hours, taking all weeks, including those in which no work was recorded, into account is 43 hours and 17 minutes. If one left out of account those weeks in which no work at all was recorded the average would increase to 49 hours and 17 minutes. The average over the last 17 weeks recorded is 47 hours and 29 minutes. It thus does not appear that, either over the last 17 weeks of Mr. Paterson’s effective period of service with the Authority, or over the entire period for which figures are available, on average he worked in excess of 48 hours per week according to his own information recorded on computer. In particular weeks he undoubtedly exceeded 48 hours per week, and, indeed, in weeks when he was working he did so frequently, but the high average figures which those weeks would have produced were reduced by weeks, 12.12% of the total recorded, in which he did not record any work at all, and a number of weeks, amounting to 21.95% of the total recorded, in which he worked but in respect of which his recorded hours were less than 48. In broad general terms, therefore, what the recorded daily and weekly records show is that between 10 November 2003 and 21 August 2004 Mr. Paterson worked in excess of 48 hours in a week in 65.93% of the available weeks.

[75]The computer entries which I have mentioned do not include, as I understand it, time spent on stand-by or time spent during an evening during the week as a result of being called out. They do, however, record work done at weekends. The weekend work recorded between 10 November 2003 and 22 August 2004 is as follows:- Date No. of hours & minutes worked 22 November 2003 1.30 23 November 2003 1.30 29 November 2003 0.45 7 December 2003 1.0 11 January 2004 1.0 17 January 2004 4.15 24 January 2004 4.0 28 February 2004 1.0 29 February 2004 1.0 13 March 2004 1.30 21 March 2004 1.15 2 May 2004 1.30 8 May 2004 4.0 9 May 2004 2.0 22 May 2004 2.0 12 June 2004 1.0 13 June 2004 1.0 19 June 2004 1.30 20 June 2004 2.30 3 July 2004 8.45 4 July 2004 1.30 18 July 2004 1.0 24 July 2004 5.10 25 July 2004 5.05 31 July 2004 2.0 1 August 2004 1.0 7 August 2004 4.0

[76]The figures for weekend working show work being undertaken on 27 days out of an available total of 82, 32.93%. The average time recorded as worked per weekend day worked is 2 hours and 19 minutes. The weekends upon which work took place were 19 out of an available 41, with work on both days at a weekend on 8 occasions. The work lasted more than 4 hours and 15 minutes on only 3 out of the 27 occasions, with work on four other occasion occupying either 4 hours or 4 hours and 15 minutes. On one occasion work occupied 2 hours and 30 minutes, but otherwise the work done on each occasion was 2 hours or less. It is quite striking that the number of weekends worked seemed to be more in the summer, 10 between May and August (4 months), than in the winter, 9 between November and April (6 months), that the number of weekends on which work was done both days was more in the summer than in the winter, 6 between May and August as against 2, and that the length of time worked at weekends was longer in the summer than in the winter, 2 hours 45 minutes on average per day, as against 1 hour 42 minutes. That is suggestive not of emergency call-outs but of planned weekend work, especially on the weekends of 3 – 4 July 2004 and 24 – 25 July 2004. However, these matters were not really explored in evidence and remain a matter of speculation. The furthest that the evidence went was that Mr. Paterson told me, in rather general terms, that he was, on occasion, asked to organise for work to be carried out at weekends.

[77]The other evidence before me of what in practice being on call at evenings and weekends meant for Mr. Paterson was his own evidence as to the number of times he was required to attend after being called out of hours. At paragraph 17 of his first witness statement he said, amongst other things:- “I was actually called out on average 2-3 times a week. However during bad weeks I could be called out every day and sometimes at night. The fact that I lived on the Estate, made it very easy for people to contact me or come round to my house. I think that most people on the Estate knew where I lived. Because there was no effective cover, when I went on holiday I would take with me entry codes and other information so that when I was contacted (which I invariably was) I was able to advise. The duration of call hours varied from about 20 minutes to several hours. I would often not know whether a call out was going to be an emergency requiring something to be done urgently or whether it was going to be a time consuming problem. Call outs would arrive without warning and when I went out I would often not have any idea of how long it would be before I would be home again. …. ”

[78]Mr. Paterson returned to the issue at paragraph 4 of his second witness statement:- “In paragraph 17 of my first statement I have referred to being called out on average two – three times [per] week. However, as I have said, during bad weeks I could be called out a lot more than that for example every day and sometimes at night. It really was very varied. For me one of the most disruptive things to my life was the fact that the very nature of callout meant it was unpredictable in time, the number of calls and when they would be. I would say that 85% of callouts meant that I would have to leave my house and go to some other part of the site. It was not often that I would be able to deal with the call over the phone. On average I worked about 30 hours a month over and above my normal 12 hour day. This extra 30 hours a month does include the weekend work referred to in paragraph 3 above. As I have said, it was not simply the volume of hours that it was necessary for me to work; it was the disruption to my family life that was caused by the nature of that additional work.”

[79]In assessing the evidence of Mr. Paterson in paragraph 17 of his first witness statement and in paragraph 4 of his second witness statement it is obviously material to have in mind the evidence of his hours of work as recorded by him between 10 November 2003 and 22 August 2004. I have already analysed that evidence. It does not show that in any single week in that period he worked as long as 60 hours. He came close once or twice, and often worked in excess of 50 hours, including weekend work, but it seems that his memory is not accurate in telling him that he normally worked 12 hours a day during the working week. Thus it seems probable that his memory is also in error in telling him that he had as many call-outs as he now recalls or that they took as long to deal with as he now recollects. His memory does, however, seem to tell him that he was not often troubled at night.

[80]The materiality of what the burden of being on call actually was to the issues in this case is principally the actual effect of being on stand-by on Mr. Paterson – in other words, whether that of itself or in conjunction with other events was a cause of his breakdown, an issue to which I shall return – and whether it was reasonably foreseeable by the Authority that the burden of being on stand-by, perhaps in conjunction with his ordinary working hours, exposed Mr. Paterson to the risk of suffering a psychiatric illness. Mr. Norman relied very heavily, in support of the case of the Authority that Mr. Paterson’s breakdown was not foreseeable, upon the fact that Mr. Paterson had performed the duties of stand-by on his own from about 1985 until about May 2003 without apparent difficulty, and thereafter had reduced duties. It is, as it seems to me, a very powerful point. Whatever stresses and anxieties Mr. Paterson was in fact under from time to time, and Mr. Paterson and Mrs. Paterson were not really challenged as to what they said about that in their respective witness statements, Mr. Paterson, submitted Mr. Norman, was at pains to conceal any symptoms from the Authority. As Mr. Moreton told me in cross-examination, Mr. Paterson always sought to present himself as a happy, jovial, “can do” sort of person.

[81]Mr. Paterson had annual performance appraisals by his line manager. These were formal meetings during which a printed form of appraisal was completed. A space was provided for the comments of the person being appraised, and he or she was also expected to sign it. In his appraisal for the period 1 April 2002 to 31 March 2003 Mr. Paterson did make comments, a course which he had not taken on the previous appraisal. What he said was:- “A little disappointing as we did not discuss any of the things achieved over this period, for instance the new Call Centre! For no reason that is clear to me (other than in one instance) I cannot see what I have received some of the ticks in the form box when in the last appraisal I received marks of five or six? Can I point out the days lost to sickness over this period (01/04/02 – 30/03/03 was two days. I look forward to what I hope will be a more positive appraisal next time.”

[82]Those observations suggest that Mr. Paterson was feeling unappreciated. Certainly, far from sharing with Mr. Moreton any concerns about stress, he was seeking to emphasise his fitness in physical terms for duty.

[83]I have already set out Mr. Paterson’s view of how the involvement of Mr. Isaac in undertaking stand-by duty came about. Mr. Moreton’s evidence was, in essence, to the effect that Mr. Paterson himself resisted the suggestion that he should share stand-by duty with others, and that he seemed to have difficulty in delegating:- “23. As I say, Norman Isaac was able to assist on call out. He was content to agree to take on call outs for Mondays and Tuesdays and one weekend a month. This is what Ian and Norman agreed. Ian could have arranged to delegate more work if he had wanted to. My feeling was that the arrangement Ian and I had come to was the maximum he was prepared to accept. 24. When I met Ian to discuss Norman taking on duties, I do recall that Ian said that he thought that other personnel could not do the job, either because they were based too far away or had children. He seemed to think that only he could do the job. I did feel that there were pressures at home as well, although I could not put my finger on anything more specific.”

[84]Mr. Christopher Jackson was employed by the Authority as an administrative assistant to Mr. Paterson from 1995. During Mr. Paterson’s absence from September 2004 Mr. Jackson took over the bulk, at least, of Mr. Paterson’s role on a temporary basis. He has now succeeded to Mr. Paterson’s effective role, although his post is entitled Facilities Manager. He does not live on the Estate, and has never done so. He was called to give evidence on behalf of the Authority. He told me that he currently undertakes stand-by duty for the Estate in conjunction with Mr. Isaac and one other. He also said that he would have been prepared to participate in stand-by duty from about May 2003, if Mr. Paterson had asked him. I accept that evidence. I was impressed by Mr. Jackson as a witness and as a person. He told me, and I accept, that, had Mr. Paterson asked him to assist by undertaking stand-by duties during a period of illness on the part of Mr. Paterson, he would have been prepared to do so without payment, just to help.

[85]The view of Mr. Moreton as to how Mr. Paterson approached the sharing of stand-by duty was, as it seemed to me, confirmed by the fact that the new arrangements involving Mr. Isaac were soon described by Mr. Paterson as not working well, and by the reasons Mr. Paterson gave for that being the case. It was also borne out by the time which it took Mr. Paterson to formalise the arrangements for Mr. Isaac. Mr. Moreton had, as I have noted, regular meetings with Mr. Paterson. He made informal notes of such meetings in a notebook which he kept. He also recorded the important points discussed in formal documents which were copied to Mr. Paterson. One thing which Mr. Moreton was anxious should happen, once the new arrangements involving Mr. Isaac were in place, was that the information as to when Mr. Isaac was to be doing stand-by duty should be posted on the Authority’s intranet, so that everyone would know who to contact out of hours on what days. Mr. Moreton first requested Mr. Paterson to post the details on the intranet at a meeting on 14 May 2003, when he asked that it be done by 21 May 2003. He also asked Mr. Paterson to produce a rota of duty by 30 May 2003. The posting on the intranet was still outstanding as at a meeting between Mr. Moreton and Mr. Paterson on 19 June 2003. The production of a rota was still outstanding as late as a meeting on 5 January 2004.

[86]Mr. Paterson’s account of how matters developed following the involvement of Mr. Isaac in stand-by duty was set out in his second witness statement at paragraph 6:- “Following my return to work meeting with Chris Moreton and the arrangement to introduce Norman Isaac to be on call on Monday and Tuesday evenings and one weekend a month, I saw no real change in the amount of hours I worked. I continued to work the same long hours as before. SPA kept records of hours worked. Norman would cover any work scheduled to be done on his weekend on duty as well as when he was on call. However, in practice it did not always work like that. Staff on site would still stop me, for example, at my gate or they would even call at my house or telephone when I was supposed to be off duty so I never felt completely free from work. For example, if I was walking home on a Monday evening, when Norman would be on standby, I could be stopped by a member of staff and told that there was a problem or a potential emergency which needed to be dealt with straightaway. It would be difficult to simply walk away from that because Norman lived in Witley which I believe is some 9.6 miles away from the site and when there is an enquiry or an emergency people contacted me rather than contacting Norman just because I lived on site and was available, whereas if they had contacted Norman they would have had to wait for a considerable time before he arrived on site to deal with the problem and by that time the situation could have escalated to something more serious.”

[87]That explanation for the difficulties in obtaining the benefits of having Mr. Isaac share the burden of stand-by duty does not really stand scrutiny. The reference to Mr. Isaac living “some 9.6 miles away from the site” looks very precise, as if Mr. Paterson had measured the distance exactly. However, Mr. Isaac was called to give evidence on behalf of the Authority and he told me that he lived 7 miles from the Estate. It seems strange for Mr. Paterson to state such a specific distance between Mr. Isaac’s home and the Estate as he did and then to get it wrong by overstating the distance by 37%. Another odd feature of the evidence is that Mr. Isaac told me, and it was not challenged, that he agreed to undertake stand-by duty on the last weekend of the month. However, a consideration of the weekends on which there is evidence that Mr. Paterson worked in the period 10 November 2003 to 22 August 2004, which I have summarised earlier in this judgment, shows that in fact Mr. Paterson recorded himself as working on the last weekend of the month on 29 November 2003, 28 and 29 February 2004 and 31 July and 1 August 2004. The fact of the matter appears to be that Mr. Paterson does not seem to have been particularly anxious to make the new stand-by system, involving Mr. Isaac, work.

[88]At all events Mr. Paterson seems to have decided at a comparatively early point that the new arrangements involving Mr. Isaac were not going to be beneficial. In his first witness statement at paragraph 19 he put the commencement of Mr. Isaac’s involvement as in about July 2003, although I think that at the trial it was accepted that Mr. Isaac in fact became involved earlier. His own evidence was that he started doing stand-by duty on a permanent basis in May or June 2003, having covered for Mr. Paterson during his absence in April. How Mr. Paterson explained matters developing in his first witness statement was this:- “25. I discussed with my wife some time in 2003 what could be done to separate our home life from my work. I spoke with Chris Moreton about the possibility of moving off-site and complained to him that there had been no significant change to the situation. 26. In order to stop the blurring between home and work life and having spoken to Chris Moreton, I asked the Chief Constable (Mr. Dennis [sic] O’Connor) in the summer of 2003, if I could move off site to another police property. This he agreed to. My wife and I looked at some properties and liked one in West Horsley that was within the radius being stipulated by Chris Moreton (although this radius did not apply to any other member of the force, civilian or officer) only to be told later for some “legal” reasons that the offer was being withdrawn. I tried another route of asking to be moved out to rented accommodation (again within the radius). My wife looked at several flats and again found one that was suitable, only for this offer, supposedly due to costs, being withdrawn. I again suggested another option of using an increase in my final pension and less rental allowance as a possible deal breaker but this was in turn turned down as too costly. The effect that this was having on me and my home life was terrible. One minute we can move, the next we cannot. Then we can, then we cannot. Then we can, then we cannot.”

[89]The documentary evidence put before me presented a rather different picture. It appeared that the first step which Mr. Paterson took in relation to moving from the House was to approach the Chief Constable, rather than Mr. Moreton. It was correct that the Chief Constable agreed to Mr. Paterson moving from the House, but it seems that what was contemplated by Mr. O’Connor was Mr. and Mrs. Paterson moving to a flat still on the Estate. In an e-mail dated 15 October 2003 to Mr. Moreton Mr. O’Connor wrote:- “I have said ‘yes’ to Ian Petterson [sic] to use the flat at the Training School as an alternative to the Chief Constable’s flat – so that the one upstairs can be released for Corporate Development. Hope this doesn’t cause any difficulty to you – hopefully it will help to release some space in the estate, which is in heavy demand. What I do believe, though, is that the flat in the Training School needs a complete makeover because at the moment it reminds me of a mausoleum.”

[90]Whatever may have been in the mind of the Chief Constable at that time, it seems that Mr. Paterson himself considered that Mr. O’Connor had agreed that he be provided with police accommodation away from the Estate. Certainly in an e-mail to Mr. Bron Scott dated 26 September 2003, which seems to have been the earliest written communication from Mr. Paterson to anyone acting on behalf of the Authority about the matter, Mr. Paterson wrote, so far as is presently material:- “Can we have a talk some time with reference to me moving of [sic] the estate to another police property. The CC [Chief Constable] have [sic] giving [sic] me the OK for this move but of course I will need to talk this over with you to sort out any implications for both sided [sic] of the house!!!”

[91]Mr. Scott contacted a lady called Dawn Lelliott in the Legal Department of the Authority about what was proposed. By the time she wrote an e-mail dated 2 October 2003 to Mr. Moreton it seems that Mr. and Mrs. Paterson had already visited the property at West Horsley which he mentioned in his statement. What she wrote in the e-mail of 2 October 2003 was:- “Following my conversation with Bron today I have looked into this proposed move. We are able to let Ian stay in the house on site for the better performance of his job which exempts the tenancy from the housing act. We cannot say this if Ian lives at west horsley He will fall under the act which has 3 main effects. He will have a secure tenancy for life (this extends to children and dependents in some cases). He will have the right to buy. The house will be independently assessed for a fair rent for the tenancy agreement.” We cannot say this if Ian lives at west horsley The house will be independently assessed for a fair rent for the tenancy agreement.”

We cannot say this if Ian lives at west horsley

[92]Mr. Moreton immediately enquired by e-mail whether Mr. Paterson could waive any of these rights. Dawn Lelliott replied in the negative. This seems to have been the communication of the legal reasons mentioned by Mr. Paterson for the matter not proceeding.

[93]In an e-mail dated 21 October 2003 Mr. Paterson enquired of Dawn Lelliott how matters were progressing. She replied the same day asking if Mr. Paterson would still be on call. He replied, also on 21 October 2003:- “The answer is yes I will still be on call. Does this complicate things?”

[94]Dawn Lelliott’s answer, again in an e-mail dated 21 October 2003 was, “No that makes it easier”.

[95]Although the documentary evidence put before me does not record such exchanges, it is apparent that Mr. Moreton and Mr. Paterson continued after 21 October 2003 to consider ways in which Mr. Paterson might be provided with accommodation away from the Estate. In an e-mail to Dawn Lelliott dated 9 December 2003 Mr. Moreton said:- “You may know that I have been talking to Ian Patterson [sic] about his desire to move out of his current company provided accommodation on site at Mount Browne into smaller premises located near to site. It is Ian’s preference that we rent him flat/house rather than offer him an allowance. Please could you advise as to the tax/legal implications of doing this and in particular whether he would have a ‘right to buy’ what the personal tax position would be for Ian how close the property would need to be to the Mount Browne site for tax purposes.” whether he would have a ‘right to buy’

what the personal tax position would be for Ian

[96]Although some intervening e-mails seem to have been generated which were not put in evidence, it appears that by 30 December 2003 the foci of attention in relation to the housing of Mr. Paterson had moved on the Authority’s side to the possibilities of the Authority leasing a property and installing Mr. Paterson in it, or providing him with an allowance towards him renting a property. In an e-mail dated 30 December 2003 to Mr. Moreton Christine Pescod, assistant to Mr. Nigel Cary of the Legal Department of the Authority, wrote:- “With regard to the queries you made to my e-mail dated 22 December – I believe that if we were to rent a property on the open market and install Ian in this, that he would not acquire a Right to Buy status because we do not own the property in which he then resides. There may be a reluctance on Ian’s part to enter into this because a lot of private lettings are for relatively short-term periods as compared with a Housing Association, which obviously would provide accommodation for as long as he would wish. The other problem with a private-rented property is that the rents tend to be more expensive than the Public Sector rentals. With regard to paying him a Rent Allowance and leaving him to find his own accommodation – this would not provide us with any difficulties, but obviously, there would be tax payable on this allowance as it will be deemed to be a benefit in kind.”

[97]Further discussions then appear to have taken place between Mr. Moreton and Mr. Paterson over the period up to 12 March 2004. By the latter date attention had shifted to the provision of a rent allowance to Mr. Paterson. In an e-mail dated 12 March 2004 to Mr. Cary Mr. Moreton wrote:- “Ian Paterson will be happy to give up his right to employer provided accommodation in lieu of a rent allowance. Clearly his employment contract will need to be varied accordingly. The only caveat I would like to see in his contract is that his residence is situated within a certain distance of Mount Browne (say 5 miles). Can you advise who would now rewrite his contract to this effect. I can supply the more detailed info upon request.”

[98]It was in fact Dawn Lelliott who replied requesting some more details. In an e-mail to her dated 15 March 2004 Mr. Moreton recorded that:- “I have tentatively agreed with him For the employer to; pay £1k per month non pensionable pay a mileage allowance for distance driven to work for outside office calls for the employee to live within a 5 mile radius of Mount Browne give up contractual rights to employer provided accommodation. If you could let me have the contractual amendments I will discuss again with Ian direct.” pay £1k per month non pensionable pay a mileage allowance for distance driven to work for outside office calls for the employee to

live within a 5 mile radius of Mount Browne

[99]For the purposes of drafting a revised contract of employment for Mr. Paterson Dawn Lelliott enquired of him by an e-mail dated 25 March 2004 his hours of work and the terms on which he undertook stand-by duties. He replied in an e-mail dated 29 March 2004:- “My working week should be for 36 hrs. My normal (!?) working week is 06:45 am to 18:15 pm with 50 minutes for lunch (with no interruptions if I am lucky!!) After this apart from Monday and Tuesday nights and the last weekend of every month I am on standby.”

[100]A new contract of employment was produced, but Mr. Paterson never signed it. In an e-mail dated 30 March 2004 to Mr. Moreton he wrote:- “Hello ref my “new contract” there are one or two areas of concern. 1) The £1,000 allowance. It does not state that this will be free of tax, just that it is non pensionable? 2) As a matter of principle does the 5 mile radius apply to all members of SPA who are on standby? 3) My contracted working hours are 36 hrs per week the fact that I do many more should not be a condition of contract. 4) There is no mention made of a relocation package? I think I am right in saying that if I was unfortunate enough to have a period of long term illness then the £1,000 allowance along with my pay would be halved thereby putting me in a position of subsidising my monthly rental payment? I think this “new contract” can be viewed as a basis for discussion but no more at this stage.” I think I am right in saying that if I was unfortunate enough to have a period of long term illness then the £1,000 allowance along with my pay would be halved thereby putting me in a position of subsidising my monthly rental payment? I think this “new contract” can be viewed as a basis for discussion but no more at this stage.”

[101]Mr. Moreton did not respond immediately to the matters raised in that e-mail. However, it seems that he and Mr. Paterson met and discussed the substance of it on 20 April 2004. In an e-mail of that date Mr. Moreton replied to the four points made:- “1) yes this would be taxable but not pensionable. We are now proposing £750 net as a way forward 2) I don’t know the answer to this. Is the requirement reasonable as far as you are concerned? 3) we agreed this subject to your call out requirement 4) I think it would be reasonable to exempt the rent allowance from the sickness provisions. If we could get agreement on this basis, would this be acceptable to you?” If we could get agreement on this basis, would this be acceptable to you?”

[102]The answer was negative, as Mr. Paterson explained in an e-mail to Mr. Moreton dated 21 April 2004:- “I have talked this proposal over with my wife and due to the amount of money on offer (not the £1,000 net we both thought of as been [sic] a fair amount!!!) and once again no mention of a relocation package. We both agree that enough is enough and there is no point in turning this into some kind of “fight” as after all one of the main drivers was to free up No. 1 The Drive for use as office accommodation. My wife and I have now come to except [sic] that we will have to remain on site and with that in mind I will now have the property fully refurbished. We had put of [sic] having this work done for a year now as we did not wish to waste any funds if as we thought the property was going to become offices.”

[103]On the face of Mr. Paterson’s e-mail of 21 April 2004 what determined him not to accept the offer of a rent allowance, and to leave the House, was money. Quite simply he considered that he was not being offered enough money to make it worth his while to give up the subsidised accommodation at the House.

[104]In fact the response of Mr. Paterson in his e-mail of 21 April 2004 was not quite the end of the saga of the discussions about him moving out of the House and going to live elsewhere. It seems that in June 2004 Mr. Moreton and Mr. Paterson discussed the possibility of the Authority paying Mr. Paterson a lump sum, if he moved out of the House. Mr. Moreton asked Mr. Paterson how much he thought that he would need to set himself up in accommodation of his own. In an undated e-mail to Mr. Moreton Mr. Paterson indicated that the sum he thought appropriate was £60,000 net of tax because:- “This sum would allow us enough to take care of our housing needs as it will cost us between 12/14,000 per year to rent some were [sic] in Guildford close enough to HQ to allow me to meet my contractual obligations to Surrey Police.”

[105]There was no suggestion on the part of Mr. Paterson that those contractual obligations in terms of hours or stand-by duty should be reduced.

[106]Nothing came of the proposal to pay a lump sum prior to Mr. Paterson suffering his breakdown. However, an offer to make a lump sum payment was made to Mr. Paterson whilst he was absent following his breakdown. In a letter dated 15 July 2005 Jane Isaacs, Personnel Manager, Central Services of the Authority, wrote:- “I am writing to confirm the discussions that were held on Friday 5th July 2005 between myself, Dawn Lelliott and Mrs. Paterson. The Chief Constable has expressed his wish that you would consider returning to work as an option [as opposed to retirement on health grounds]. We understand that you are not well at present but both he and others hope that in future he [sic] may be able to return. The chief has also agreed that he would like to offer you a £40,000 lump sum payment. This payment would be towards helping you to move off site as we are aware that living on site is slowing down your recovery. It is felt that this sum would pay for rent or a mortgage off site for 18 months – 2 years at which point it is hoped that you would be able to either return to work at Surrey Police in a role or work elsewhere. This payment would be purely in respect of you moving off site and has no link to your employment status whatsoever. The payment would be made once you had left site and would be formalised by an agreement. Dawn is researching the tax position relating to the payment and will respond shortly. As I have already said, you would continue to be employed by us under the normal sickness procedure. However at a later date should you decide not to return, then there would be no obligation connected to the payment.”

[107]No payment was made at that time. However, the payment of £40,000 was made when Mr. and Mrs. Paterson left the House at the end of March 2006.

Foreseeability

[108]As I have explained, whether the Authority is liable to Mr. Paterson in respect of the breakdown which he suffered, and the consequences of that breakdown for him, depends, in the first instance, upon whether it was reasonably foreseeable by the Authority, in accordance with the guidelines enunciated by Hale LJ in Hatton v. Sutherland which I have set out, that he would suffer injury to his health as a result of stress to which he was subjected during the course of his work as Estate Manager. I have also explained that Miss Hobhouse relied upon the provisions of Regulations 4(1) and (2) and 11 of the 1998 Regulations as being relevant to the question of foreseeability, but that, in my view, their relevance was limited. The real issue in this case is whether the Authority had any reason to suppose that Mr. Paterson would suffer a breakdown or other injury as a result of stress caused by his work. In my judgment the answer is in the negative.

[109]In the light of my findings that Mr. Paterson never submitted a self-certification form mentioning the word “stress”, and that Mrs. Paterson did not tell Mr. Moreton during their telephone conversation in December 2002 or January 2003 either that she considered that Mr. Paterson was suffering, or that she thought that he was likely to develop, symptoms as a result of stress, the only indication which the Authority ever had that Mr. Paterson was suffering, or was at risk of suffering, as a result of stress at work was the material included in the Fitech Report. However, that was in 1991 and far too remote in point of time, in my judgment, from the occurrence of the breakdown for it to be reasonable to expect the Authority to have treated it as indicative of the position in 2004 when the breakdown occurred.

[110]Thus what one is left with is a situation in which Mr. Paterson had been working the ordinary hours which he worked in 2004, whatever they actually were, from at least 1985 without apparent difficulty and without complaint, undertaking stand-by duties during all non-ordinary hours on his own from at least 1987 without apparent difficulty and without complaint, save that made in December 2002 or January 2003 by Mrs. Paterson about the effect of being called out on Mr. Paterson’s home life. The extent of stand-by duty had been reduced in about May 2003 so far as Mr. Paterson wanted it to be, and with reluctance on his part. He maintained throughout all of the discussions about moving away from the House in 2003 and 2004 that he wanted to continue to perform his contractual duties to the Authority, including stand-by duty to the extent that he then did. He presented himself as keen and fit to carry out his duties. Far from disclosing to the Authority the stress under which he was operating, or the symptoms which he suffered in consequence, he seemed to deny to himself what was happening to him. He certainly took active steps to conceal from the Authority that he was suffering from stress, and he was not prepared to discuss it with his wife. In those circumstances all that could be said in support of the allegation that the Authority should reasonably have foreseen the risk of Mr. Paterson developing psychiatric illness as a result of stress was that it was obvious from the number of hours which he worked each week during normal hours and the amount of stand-by duty which he undertook. Miss Hobhouse’s submission I think really amounted to the contention that any employer should foresee that any employee who works for longer hours than those provided for in Regulation 4 of the 1998 Regulations, or without the rests provided for in Regulation 11 of those regulations, was at risk of developing psychiatric injury as a result of stress. In my judgment, in principle that cannot be correct. The period of 48 hours specified in Regulation 4 of the 1998 Regulations must be to a degree arbitrary. It would be an extraordinary position if it was accepted that an employer need not foresee the risk of psychiatric injury as a result of stress if an employee worked on average for 48 hours per week in a 17 week period, but the employer should have foreseen the risk if the employee worked on average for 48 ½ hours per week. Again, it would be absurd if foreseeability was to a degree floating, such that if the employee worked an average of in excess of 48 hours in some 17 week periods, but not in others, foreseeability came and went depending upon which 17 week period one was looking at. Further, the guidelines set out by Hale LJ do not seem to contemplate that, if otherwise an employer ought reasonably to have foreseen that an employee was at risk of developing a psychiatric injury, the employer could somehow avoid a finding against it on the grounds that the particular employee worked for less than 48 hours on average per week. In relation to periods of rest, one would expect that how a given individual would be likely to be affected by being on stand-by duty in addition to undertaking work in normal hours would be likely to depend upon factors such as the likelihood of being called out and the inconvenience of being called out in such terms as distance to be travelled, time to be spent if called out and disruption to family life. If the risk is small, or the inconvenience slight, there may be no risk at all of developing a psychiatric injury, even if, technically, all the time on stand-by counted as working time for the purposes of the 1998 Regulations.

[111]Consequently I find that the risk of Mr. Paterson developing the psychiatric illness which he did was not one which was reasonably foreseeable by the Authority.

The 1999 Regulations

[112]As it seems to me, Mr. Paterson is not able, on the facts of this case, to place any reliance in support of his claim on the provisions of the 1999 Regulations.

[113]As I have pointed out, Regulation 3 of the 1999 Regulations does not require that the assessment which Regulation 3(1) specifies be undertaken in any particular form or at any particular time or be reviewed at any particular frequency. All that is required is that the significant findings of the assessment be recorded. Mr. Norman accepted that no record had been made of any assessment of the post of Estate Manager, but he contended that assessments had been made in the course of discussions between Mr. Moreton and Mr. Paterson at the times of return to work interviews, annual performance appraisals and regular monthly meetings. The assessment specified in Regulation 3(1) was of “the risks to health and safety of his [the employer’s] employees to which they are exposed whilst they are at work”.The purpose for which the assessment specified in Regulation 3(1) was required was “identifying the measures he [the employer] needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions”. Miss Hobhouse explained in her submissions that the relevant statutory provisions for which she contended in the present case were thosecontained in the 1998 Regulations. Thus the focus of attention in any assessment was of the risks to health and safety of the Estate Manager if measures were not taken to comply with the 1998 Regulations. While it was undoubtedly somewhat informal, it seems to me that the discussions between Mr. Moreton and Mr. Paterson starting on his return to work in April 2003 about the reduction in the amount of stand-by duty undertaken by Mr. Paterson was in the nature of an assessment of the risks to health and safety, for the concentration, on Mr. Moreton’s side, was on reducing, to the extent that Mr. Paterson would accept it, the amount of time he spent on stand-by. The discussions would not have followed the course they did unless Mr. Moreton had recognised that, at the very lowest, it was not a good idea for Mr. Paterson to continue to perform as much stand-by duty as he had. However, even if that is over-generous to the Authority, it seems to me that if some formal assessment of the risks to health and safety of the Estate Manager undertaking stand-by duty during all periods outside of normal hours had been undertaken, it could only have led to the recognition that Mr. Paterson should not be undertaking as much stand-by duty as he was, and thus provoked the discussion which in fact took place between Mr. Moreton and Mr. Paterson about involving others in stand-by duty, with exactly the result of the actual discussions. Thus no breach of any provision of Regulation 3 the 1999 Regulations seems to me to have been causative of any loss.

[114]The other provision of the 1999 Regulations upon which reliance was placed was Regulation 6. As I have pointed out, the expression “health surveillance” is not defined for the purposes of the 1999 Regulations and it seems to me not to be a term of art in the English language. The underlying concept in Regulation 6 seems to be that, where an assessment has been made under Regulation 3(1), the employer should keep an eye on the employees to whom the assessment relates to see that any health and safety risks identified in the assessment do not produce whatever consequences to health flow from those risks, if they eventuate, or, if such consequences are produced, that they are identified and treated. Regulation 6 can only come into play if there has been an assessment under Regulation 3(1), so, if Miss Hobhouse were correct in submitting that there had been no such assessment in this case, it would not be appropriate to consider Regulation 6. However, in a case in which the risk to health identified is a risk of developing a psychiatric injury, it would seem that the appropriate “health surveillance” is not subjecting employees periodically to interview by a psychiatrist, but having in place mechanisms for an employee to seek help, and keeping an eye, so far as someone with no professional psychiatric qualifications can, on how employees seem to be. In the present case on the evidence, the appropriate mechanisms were in place at the Authority, and Mr. Moreton had regular meetings with Mr. Paterson, and had a meeting with him in particular if he had been absent from work by reason of ill-health. There was thus no breach of Regulation 6 on any view.

Causation

[115]Mr. Paterson was seen for the purposes of this action by two distinguished psychiatrists, Dr. Michael Isaac, who was instructed on Mr. Paterson’s behalf, and Professor Thomas Fahy, who was instructed on behalf of the Authority. Each of the experts in fact interviewed Mr. Paterson on the same day. They seem, from the reports which they prepared following such interviews, to have come to very similar conclusions. They prepared a joint statement of the matters about which they agreed – they did not really disagree about much, although there was, perhaps, a difference of emphasis in their respective views. The joint statement included:- “4.2.1 In their respective reports, Dr. Isaac and Professor Fahy have commented on the claimant’s personality and make up, in particular his high levels of constitutional conscientiousness. 4.2.2 They agree that Mr. Paterson developed a vulnerability to stress-related symptoms following increased work demands, though there is no documented indication that work demands caused Mr. Paterson to develop significant psychiatric symptoms prior to going on sick leave in September 2004. 4.2.3 Dr. Isaac and Professor Fahy agree that if Mr. Paterson had lived off site he would have been better able to control the demands of his job, particularly the on-call pressures. 4.2.4 In Dr. Isaac’s view, if Mr. Paterson had lived off site it is more likely than not that his subsequent problems might either not have happened or not have happened to such a severe degree. 4.2.5 In Professor Fahy’s view, Mr. Paterson’s extremely conscientious attitude towards work would have continued whether he lived on or off site. It is likely that his approach to work increased the ordinary stresses of his job. However, long working hours and residence on the work campus had not led to psychiatric symptoms prior to September 2004 and would not have caused him to become unwell in September 2004 in the absence of Mr. Patterson’s [sic] disillusionment about his housing situation. If it is established that the employer’s failure to re-house Mr. Patterson [sic] constituted a breach of duty, then it is reasonable to consider that this breach was one of the factors (in addition to Mr. Patterson’s [sic] personality and the death of his father) that contributed to the onset of his psychiatric illness.4.3.1 On the balance of probabilities, a move to off site accommodation that was satisfactory to Mr. Paterson and his family in 2003 would have prevented him from becoming psychiatrically unwell in late 2004. Such a change in his living circumstances would have had much more influence on his risk of developing a psychiatric illness than a reduction in his working hours.

4.3.2 Professor Fahy also notes that while the claimant’s employers may have recognised that Mr. Paterson was unhappy, they could not have realised that he was developing a psychiatric illness.

4.3.3 Dr. Isaac and Professor Fahy noted that the claimant’s father died when he was on sick leave and they accept that this may have accelerated the onset of his main symptoms, although they agree that the death of the claimant’s father was only a minor contributory factor. 4.4.1 Dr. Isaac and Professor Fahy agree that on balance there was no pre-existing pointer to Mr. Paterson’s being unable to work until the age of 65, although they reiterate the existence of a measure of vulnerability in his existing personality structure. …

5.2.1 Neither Dr. Isaac nor Professor Fahy is prepared to say that Mr. Paterson’s working hours “alone” … caused him to suffer psychological injury. We consider that the off site problem was central to the development of the claimant’s psychiatric symptoms.

5.2.2 Professor Fahy also notes that Mr. Paterson’s out of hours rota commitments were reduced in 2003, which should have reduced the stress associated with this role, and thereby reduced the likelihood that his working hours alone would cause psychological injury. … 5.3.2 However, they agree that Mr. Paterson’s failure to obtain off-site accommodation that was satisfactory to him and his family significantly contributed to the onset of his psychiatric symptoms. 5.3.3 It is clear that he was frustrated and disillusioned by the way in which his request for off site accommodation was handled. Mr. Paterson may have expected his loyalty and commitment to his employer to be rewarded with an offer of satisfactory off-site accommodation, but it will be a matter for the court to consider if this expectation was reasonable and if the employer discharged their responsibility to Mr. Paterson’s [sic] in an appropriate manner.”

[116]Each of Dr. Isaac and Professor Fahy was called to give evidence at the trial. I think that they each recognised the death of Mr. Paterson’s father as an important factor in his breakdown in terms of its timing. Both agreed that Mr. Paterson was extremely conscientious and that he had difficulties separating his work and his private life.

[117]Dr. Isaac explained to me in cross-examination that he thought that the benefit to Mr. Paterson of living away from the Estate would have been to raise a psychological barrier between his work and his private life. In his oral evidence Dr. Isaac described the issue of accommodation as being extremely important in Mr. Paterson’s breakdown, possibly the most important single factor. He said that it could be said that Mr. Paterson thought that he was not getting the reward he was entitled to, in not being provided with accommodation away from the Estate which he considered to be satisfactory, and that loss of a deeply desired wish was a stressing factor.

[118]Professor Fahy attended the trial from the beginning until the conclusion of his own evidence. He thus saw and heard Mr. Paterson give evidence. In his oral evidence Professor Fahy commented that he observed in the manner in which Mr. Paterson gave evidence a strong sense of grievance, a feature which I have to say seemed plain even to a non-psychiatrist. Professor Fahy told me that he considered that once the discussion between Mr. Moreton, and others on behalf of the Authority, and Mr. Paterson about alternative accommodation came to an end it was replaced, so far as Mr. Paterson was concerned, by a sense of grievance, anger and personal affront.

[119]In cross-examination Professor Fahy told me that a major depressive episode can develop very quickly. He said that he considered that, while Mr. Paterson’s stand-by duties had been a factor in the past in causing stress, he did not consider that they caused his breakdown for the simple reason that they had not caused a breakdown previously. Mr. Paterson had carried out his stand-by duties for many years without becoming ill. In Professor Fahy’s view, by the time the breakdown occurred other factors had become involved, in particular that Mr. Paterson took badly what he saw as a rejection by his employer of a request to move away from the Estate. Professor Fahy considered that that was the turning point in the clinical history of Mr. Paterson. He told me that he took the view that the strength of the reaction of Mr. Paterson to the non-provision of accommodation away from the Estate conveyed a sense of rejection, that Mr. Paterson took it personally, and that it was like challenging his worth to the organisation and how the organisation viewed him. Later in his cross-examination Professor Fahy told me that he did not think that there was any indication that the length of the hours during the normal day which Mr. Paterson worked had contributed to his illness. He said that while the stand-by duties caused a degree of stress, he did not consider that they caused any psychiatric illness. In his opinion, if Mr. Paterson had been relocated to accommodation satisfactory to himself, his stress would have been lifted and he would have felt valued.

[120]As I have noted, the differences between Dr. Isaac and Professor Fahy were mostly of emphasis. The most significant difference between them was whether, as Professor Fahy told me, what caused Mr. Paterson’s breakdown was essentially his perception of how he had been treated in relation to the matter of relocating from the Estate, or whether, as Dr. Isaac considered, that perception, whilst possibly the single most important factor, was not the only one and that stress resulting from hours of work and stand-by duties was also causative of the breakdown. I was extremely impressed by Professor Fahy as a witness. His evidence was clear, balanced, logical and in part reinforced by the benefit of seeing Mr. Paterson give evidence at the trial, an advantage which Dr. Isaac did not have. I prefer the evidence of Professor Fahy to that of Dr. Isaac, where they differed.

[121]Thus I conclude that the operative cause of the breakdown suffered by Mr. Paterson in September 2004 was his perception of how he had been treated by the Authority in respect of his wish to be provided with accommodation away from the Site.

[122]Miss Hobhouse submitted, as it was put at paragraph 68 of her written skeleton argument, so far as is presently relevant, “It is the Claimant’s case that the steps taken by the Defendants after December 2002 were inadequate, in particular … The Defendants did not prioritise the Claimant’s request to move off site. The legal and financial implications were not insurmountable but negotiations were allowed to drift and a year after the move was agreed in principle the Claimant was still living on site.”

[123]From the line taken by her in cross-examination of Mr. Moreton, it seemed that what that submission was intended to convey was a contention that the Authority owed a duty to Mr. Paterson to provide him with accommodation away from the Estate. Certainly Miss Hobhouse sought to question Mr. Moreton as to the benefits to the Authority of having the use of the House to convert to office accommodation and the savings made by not having to rent alternative office space in Guildford.

[124]In my judgment, seeking to impose on the Authority a duty of care which involved providing Mr. Paterson with accommodation away from the Estate in place of accommodation provided to him for the better performance of his duties as Estate Manager goes way beyond what could conceivably be legitimate. The significance of that view is that it follows that, as the Authority had no duty to provide alternative accommodation to Mr. Paterson, the Authority could not be criticised for how it responded to Mr. Paterson’s request for such accommodation or a payment in lieu. In fact, as it seems to me, the Authority went a long way beyond what Mr. Paterson was entitled to expect in discussing with him alternative accommodation and being prepared to involve itself in that issue to the extent of offering a contribution towards the costs of alternative accommodation. It was Mr. Paterson who rejected what was offered, not the Authority which made no offer or withdrew an offer before Mr. Paterson had had an opportunity to consider it. Far from the approach adopted on behalf of the Authority being a matter of criticism from the point of view of Mr. Paterson, it was in fact most generous and showed possibly an excessively benevolent inclination towards Mr. Paterson. It may be doubted whether a commercial organisation would have contemplated for a moment providing accommodation alternative to that which an employee had been required to occupy for the better performance of his duties because the employee no longer wished to live in the premises provided.

[125]As I accept the evidence of Professor Fahy that the operative cause of Mr. Paterson becoming psychiatrically ill in September 2004 was how he considered that he had been treated by the Authority in the matter of alternative accommodation, and as, for the reasons which I have given, it seems to me that the Authority owed no duty to Mr. Paterson in relation to the provision of alternative accommodation, it follows that the cause of Mr. Paterson becoming ill was not a breach of duty on the part of the Authority.

Conclusion

[126]For the reasons which I have given, this action fails and is dismissed.

Cited in 1 later judgment

Mullen v Accenture Services Ltd. 2010