HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Barber (Appellant) v. Somerset County Council (Respondents)

[2004] UKHL 13

LORD BINGHAM OF CORNHILL

My Lords,

    1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I am in full agreement with it, and for these reasons would allow the appeal and make the order which he proposes.

LORD STEYN

My Lords,

    2. I have had the privilege of reading the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it. I too would make the order which he proposes.

LORD SCOTT OF FOSCOTE

My Lords,

    3. The issue in this case is whether the Somerset County Council, who employed Mr Barber as a teacher at their East Bridgwater Community School, are liable to him in damages for the mental breakdown he suffered brought about by the pressures and stresses of his workload. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Walker of Gestingthorpe and gratefully adopt his exposition of the relevant facts and the history of this litigation.

    4. As Lord Walker has explained the Court of Appeal heard four conjoined appeals of which Mr Barber's case was one. In each case a defendant employer appealed against a finding of liability for an employee's psychiatric illness caused by stress at work. Two of the employees were teachers in public sector comprehensive schools — Mr Barber was one of them. Another of the employees was an administrative assistant at a local authority training centre. The fourth was a raw materials operative in a factory. The Court of Appeal heard the four cases together in order to try and provide guidance as to the principles that should be applied to cases where an employee's complaint about the system of work provided by his employer and under which he had had to work was not that the system had subjected him to some degree of unnecessary and unreasonable physical danger but that it had subjected him to a degree of mental stress carrying the risk of psychiatric illness.

    5. The judgment of the Court of Appeal was given by Hale LJ. In my respectful opinion her judgment succeeded in succinctly and accurately expressing the principles that ought to be applied. Lord Walker has cited paragraph 29 of her judgment but has preferred, as a statement of general principle, the statement of Swanwick J in Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776. My Lords, my own preference is the other way round. Swanwick J did not have in mind the problems of psychiatric illness caused by stress. In Stokes the employee had been exposed at work over a long period to mineral oil which, on a daily basis, had saturated his clothing and come into contact with his skin. As a result of this he developed cancer of the scrotum from which he eventually died. The question was whether there were steps or precautions that the employers ought to have taken to protect Mr Stokes from the risk of contracting the disease (see pages 1782/3). The question, in short, was whether his employers were providing for him a reasonably safe system of work.

    6. An appreciation of the existence of physical dangers of the sort that Mr Stokes, unbeknownst to himself, was facing is dependent on scientific and medical knowledge. The factory doctor at the factory where Mr Stokes worked had known of the risk of scrotal cancer, had failed to draw the workforce's attention to the risk and had failed to institute periodic medical examinations of workers exposed to the risk. Swanwick J held that those failures constituted negligence. The contrast with psychiatric illnesses caused by stress is obvious. Take Mr Barber's case. The school authorities could only know what Mr Barber told them. This was the point Hale LJ was making in the passages in italics in her paragraphs 29 and 30:

"Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job",

"Generally he is entitled to take what he is told by or on behalf of the employee at face value" and

"… an employee who returns to work after a period of sickness without making further disclosure or explanation to his employer is usually implying that he believes himself fit to return to the work which he was doing before."

Mr Langstaff QC, counsel for Mr Barber, protested that this approach was placing the onus on the employee to alert the employer. He is quite right. Such an approach would probably be unwarranted if the complaint was of a system of work which exposed the employee, or others, to a physical danger. An employer ought to take steps to understand the implications for the physical safety of his employees of the system of work he is imposing on them. But how can this approach be right where stress caused by a heavy workload is concerned? Most employees can cope. A few may have problems in coping. Only a tiny fraction of them will be at risk of psychiatric illness. And how can the employer even start to consider whether any special steps need to be taken unless the employee keeps the employer informed about his problems? Swanwick J was dealing with a completely different problem. Hale LJ was providing guidance as to the approach to a new problem.

    7. In paragraph 43 of her judgment Hale LJ formulated a number of "practical propositions" applicable to cases where complaint is made of psychiatric illness brought about by stress at work. All are valuable but some are particularly pertinent to this case—

"(2)  The threshold question is whether [psychiatric] harm to this particular employee was reasonably foreseeable …: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

(3)  Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large … An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

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

(5)  Factors likely to be relevant in answering the threshold question include: (a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? … Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? …

(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 inquiries of the employee or seek permission to make further inquiries of his medical advisers.

(7)  To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

(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

(12)  If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.

(13)  In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

… "

    8. Hale LJ applied these propositions to the primary facts of the Barber case, as found by the trial judge, and expressed her disagreement with the trial judge's conclusions. She did so in paragraphs 57 to 59 of her judgment (cited at paragraph 66 of Lord Walker's opinion). The trial judge, of course, did not have the advantage of Hale LJ's paragraph 43 guidance. If he had, I do not think he would have said, as he did in paragraph 42 of his judgment, that the "crucial question" was

"… whether the pressures to which [Mr Barber] was exposed put him at a materially higher risk of mental illness than that which would affect a teacher working with [Mr Barber's] responsibilities under a heavy workload."

He would have appreciated that the crucial questions were, first, whether Mr Barber's breakdown in November 1996, caused, as the judge held, by his heavy workload and responsibilities, was reasonably foreseeable by the school authorities (see Hale LJ's propositions (2), (3), (5), (6) and (7) in her paragraph 43); and, second, whether there were steps that the school authorities could, and should, have taken to prevent the breakdown (see Hale LJ's propositions (9), (12) and (13)).

    9. It may be that if the judge had had the advantage of the guidance provided by Hale LJ he would still have concluded that Mr Barber's breakdown was indeed reasonably foreseeable and that there were steps that the school authorities could, and should, have taken that would have prevented the breakdown. A fair reading of his judgment suggests the probability that he would have come to these conclusions. The Council would have appealed. Would it have been open to the Court of Appeal to disagree with the trial judge's conclusions?

    10. It is at this point that, to my regret, I find myself in disagreement with a majority of your Lordships. Your Lordships are all agreed in approving the statements of legal principle and the practical guidance to be found in the judgment of Hale LJ. But your Lordships disagree with Hale LJ's reversal of the trial judge's conclusions. As Lord Walker puts it, in para 67 "…. there was insufficient reason for the Court of Appeal to set aside [the trial judge's] finding" that Mr Barber's employer was in breach of duty; and, in para 70, "The judge was entitled to form the view that the school's senior management team were in a position of continuing breach of the employer's duty of care …". My noble and learned friend Lord Rodger of Earlsferry expresses himself in similar terms:

"…. I am satisfied that there was material on which the judge was entitled to take the opposite view." (para 16)

    11. My Lords the question, in my respectful opinion, is not whether the trial judge "was entitled" on the material before him to come to the conclusions he came to. The question is whether his conclusions were correct. The Court of Appeal thought they were not. A statement that the trial judge was entitled to come to the conclusions leaves that question unanswered. The conclusions are judgmental. They are not findings of primary fact; they are not conclusions as to how some judicial discretion should be exercised. They constitute the judgment of the trial judge based upon his findings of primary fact. Why cannot the Court of Appeal substitute their own judgment if it thinks the trial judge's judgment was wrong? The Court of Appeal's function in hearing Mr Barber's appeal, and the other three appeals, was to review the conclusions of the trial judge. CPR 52.11(1) says, subject to some exceptions not here relevant, that

"Every appeal will be limited to a review of the decision of the lower court …"

A "review" surely entitles the appeal court in a case such as this to consider the standard of care that the trial judge has held the defendant should have observed and, if it thinks the standard to be too strict, or not strict enough, to substitute its own standard. That is what the Court of Appeal did in the present case.

    12. After the primary facts have been found and proper directions as to the legal principles to be applied have been given, the decision as to whether a defendant was in breach of the duty of care owed to the claimant has still to be taken and will in every case depend on the standard of care that is thought requisite. This is so in the simplest of cases. Take the case where a pedestrian has stepped off the pavement and been hit by a car. The car was travelling at 25 mph and the motorist could have foreseen the possibility that the pedestrian might step into the road but did not do so. What standard of care is to be required of the motorist? The trial judge may conclude that the speed of 25 mph, in view of the traffic conditions and the likelihood of jaywalkers, was excessive and, accordingly, hold the motorist to be in breach of his duty of care. An appeal court, conducting a review, and accepting all the primary findings of fact, may take the view that the trial judge set too high a standard of care and that the motorist should not have been held to be in breach of his duty of care. It is, I repeat, a legitimate and important function of the Court of Appeal in negligence cases to review the standard of care set by the decisions of the lower courts and to correct the lower courts' rulings if it thinks them to be wrong.

    13. The critical issue in the present case relates to the standard of care required to be observed by school authorities in relation to teachers who they have reason to know, or believe, are having difficulty in coping with their heavy workload and are consequently suffering from some degree of stress. The trial judge thought that the school authorities, given what they knew about Mr Barber's problems in the 1996 summer term, should have relieved him of some of his workload and responsibilities in the autumn term. That would be setting a high standard of care. Mr Barber was an experienced teacher who had, in the summer term, taken three weeks off work after seeing his doctor who had diagnosed stress and depression. The decision to see his doctor was a decision that he, himself, was able to take. He then followed his doctor's advice. Again, that was his, Mr Barber's, decision. It was one he was able to take. It might have been expected that, in the autumn term, if again he found himself unable to cope, he would have followed the same course. But the trial judge thought that the school authorities, because they knew of his problems in the previous term, and although he had not given them any indication that his problems were continuing and increasing, owed him a duty that required them to relieve him of some of his workload in the autumn term. Hale LJ, however, thought that that was setting too high a standard of care

"…. it is difficult indeed to identify a point at which the school had a duty to take the positive steps identified by the judge …. it is expecting far too much to expect the school authorities to pick up the fact that the problems were continuing without some such indication." (para 59)

    14. In my opinion, the correction by Hale LJ of the standard set by the judge was justifiable and should be upheld by the House. Schools operate under considerable difficulties. I do not suppose there are many, if any, teachers whose workload does not place them under considerable continuous pressure apt to cause stress and sometimes depression. The same, I suspect, would apply to many professional employees. Nurses and doctors working in the NHS are an obvious example. Employed lawyers working in busy city firms are probably another. Pressure and stress are part of the system of work under which they carry out their daily duties. But they are all adults. They choose their profession. They can, and sometimes do, complain about it to their employers. In underfunded institutions providing vital social services there is often very little that the employers can do about stress problems. Colleagues in the school, or hospital, are likely to be carrying an equally heavy workload. Is it fair to ask them to assume a greater burden in order to relieve the stress on a particular teacher? Can the school afford to ask for a supply teacher? As a last resort the school may have to do so. But the school is entitled to expect, first, to be kept fully informed by the teacher in question of his or her problems. Mr Barber communicated nothing to his school authorities in the two months of the autumn term that preceded his breakdown. The school is entitled to expect, also, that the teacher, an adult, will take his own decisions as to whether he needs to consult his doctor and will, if so advised by his doctor, take time off. Mr Barber had done so in the summer term. These comments of mine do no more than express in different words what Hale LJ said in paragraphs 58 and 59 of her judgment in explaining why she disagreed with the conclusions of the trial judge.

    15. In my opinion, the trial judge set the standard of care required of Mr Barber's school authorities at too high a level and Hale LJ adjusted the standard to a proper, more realistic, level. The standard set by the trial judge was too demanding. She was entitled on a review of his decision to reverse him. Your Lordships may, in disagreement with the standard set by her and in agreement with the standard set by the judge, restore his order. But, for my part, I think the standard set by Hale LJ was a realistic recognition of the particular difficulties posed by complaints by teachers of psychiatric illness caused by heavy workload and consequent stress. I would dismiss this appeal. I would add only that, having had the advantage of reading in advance the opinion of my noble and learned friend Lord Rodger of Earlsferry, I agree with everything he has said save his conclusion that the appeal should be allowed.

LORD RODGER OF EARLSFERRY

My Lords,

    16. As my noble and learned friend, Lord Walker of Gestingthorpe, has explained, at the hearing before your Lordships the main emphasis in the submissions of counsel was on the facts of this particular case. More precisely, counsel addressed the question whether, on the evidence, Judge Roach had been entitled to hold that the school authorities ought to have foreseen that, if he continued with his existing workload, Mr Barber was liable to develop a mental illness. The Court of Appeal considered the same question and, having read the transcript of the evidence for themselves, they concluded that it was expecting far too much to expect the school authorities to pick up the fact that Mr Barber's problems were continuing in the autumn term of 1996, when he had not gone to Mr Gill at the beginning of the term and told him that things had not improved over the holidays. I have considerable sympathy with that view. Having carefully considered the analysis of the evidence in Lord Walker's speech, however, I am satisfied that there was material on which the judge was entitled to take the opposite view. Counsel for Somerset County Council ("the Council") did not suggest that he had applied the wrong test. In these circumstances I am unable to say that the judge, who had enjoyed the advantages, "sometimes broad and sometimes subtle", of seeing and hearing the witnesses, was "plainly wrong": Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 37 per Lord Shaw of Dunfermline, quoted with approval by Lord Thankerton in Thomas v Thomas [1947] AC 484, 488. It follows that the Court of Appeal should not have disturbed the judge's conclusion that the school authorities ought to have foreseen that Mr Barber's mental health would be impaired if he continued to work the same hours as he had been working since September 1995.

    17. It is apparent from the pleadings, and from counsel's closing skeleton argument for the Council in the county court, that the parties went into battle on a number of issues: in particular the foreseeability of Mr Barber developing a mental illness, as opposed to suffering from stress, the causes of his illness and the measure of damages. The judge resolved all these issues in Mr Barber's favour. The content of the employers' duty of care does not appear to have been addressed as a specific topic.

    18. The employer's duty is to take reasonable care to avoid injuring his employee's health. Therefore, as the Court of Appeal stressed, even where a court finds that such injury was foreseeable, it must go on to consider what steps the employer could be reasonably be expected to take once he was aware of that risk and whether they would have been effective: [2002] 2 All ER 1, 15-16, paras 33 and 34.

    19. In his pleadings Mr Barber simply alleged that the Council "failed to provide the plaintiff with proper help and assistance" which the Council, equally simply, denied. There is nothing to suggest that at the trial the parties explored the nature of the help and assistance which the Council were said to be under a duty to provide. Against that background it is perhaps not surprising that, having expressed the view that a prudent employer would have investigated his employee's situation "to see how his difficulties might be improved", the judge went on to say that "the prudent approach would have been to investigate [the possible risks to Mr Barber's health] and provide assistance if only in the short term." He then concluded:

"The failure to investigate or provide at the least temporary assistance led in my judgment to the claimant attempting to cope and in the result inevitably failing in that attempt by November 1996."

    20. This conclusion is not a proper basis for holding the Council liable in damages to Mr Barber. The judge assumes that either the failure to investigate or the failure to provide at least temporary assistance led to Mr Barber's breakdown in November 1996. But any failure to investigate would not have had a bearing on the onset of Mr Barber's illness unless the Council would have been under a duty to take steps that would actually have alleviated the situation and so prevented the illness. Unfortunately, the judge does not explain what "assistance" the Council were under a duty to provide or for how long. Nor does he explain why he thinks that "temporary assistance" would have prevented the illness in November 1996 or after the assistance was withdrawn, when evidence that he accepts indicates that the three weeks' absence on sick leave in May did not effect a cure.

    21. Although the amount of the damages to be awarded is now agreed, it is worth noticing that in assessing them the judge appears to have envisaged that the "temporary" assistance to Mr Barber might have been quite long-lasting. The Council argued that the damages should be reduced to take account of the possibility that Mr Barber would not have continued as a teacher because of his disenchantment with the profession. The judge rejected this argument, saying:

"Had he received assistance to alleviate his work overload and the pressures to which he was subject at work in 1996 I take the view on a balance of probability that he would have continued in his chosen profession until retirement age."

Here the judge seems to assume that assistance to alleviate Mr Barber's workload would have been provided on a basis that would have meant that, for the rest of his career, Mr Barber would not have been under the same pressures as in 1996.

    22. My Lords, for my part, I find the judge's conclusions on this crucial part of the case very far from satisfactory. Indeed, were it not for the fact that the Council do not really seem to have fought the case on this issue, I would have been disposed to dismiss the appeal on the basis that Mr Barber had failed to prove that, if the Council had taken reasonable care, he would not have developed the illness. But, in the absence of any significant evidence on behalf of the Council dealing with this issue and in the absence of any direct challenge by them, they cannot complain if the most favourable inferences of which it is reasonably capable are drawn from the evidence led on behalf of Mr Barber: Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768, 775 per Lord Reid. So, on balance, I would not disturb the judge's finding on the point.

    23. Lord Walker has spelled out in more detail the nature of the assistance which he envisages the Council would have been under a duty to provide. The senior management team should have taken the initiative in making sympathetic inquiries about Mr Barber when he returned to work and in "making some reduction in his workload to ease his return". Even a small reduction in his duties, coupled with the feeling that the senior management team was on his side, might have made a real difference. If his condition did not improve, some more drastic action would have had to be taken. Employing a supply teacher would have been one possible remedy and preferable to the permanent loss through psychiatric illness of a valued member of the school staff. I must explain briefly why I do not feel able to go as far as Lord Walker in identifying what the Council should have done in this case.

    24. The arguments of counsel before the House took account of certain aspects of the wider context in which any common law duty of care would operate. In particular, reference was made to the health and safety legislation and to the relevant code of practice as well as to the guidelines on the effects of stress at work. On the other hand much less attention was paid to the contract(s) between the Council and Mr Barber. It is frequently said that, as between the parties to a contract, any duty of care in tort can be equated with an implied contractual term to the same effect. So in a case involving a teacher, the conditions of employment of teachers of the relevant grade are relevant. Teachers' pay and conditions are the product of national negotiations between representatives of the education authorities and the teachers' unions. Government education and funding policies form the backdrop to these negotiations which result in a complex set of terms and conditions. During the hearing your Lordships were supplied with a copy of those that applied in 1996. In determining the content of any duty of care that the Council owed to Mr Barber, it would be necessary to have due regard to the relevant provisions of his contract with them, embodying these terms and conditions.

    25. In fact, in his case there was a contract governing his position as Mathematical Area of Experience Co-Ordinator ("mathematics co-ordinator") and another contract governing his position as Project Manager responsible for publicity and media relations. In 1995 Mr Barber's salary in his new position as mathematics co-ordinator was to be less than his previous salary as head of department before restructuring and he took on the additional post as project manager in order to try to maintain his income. It was the combined workload of these two positions that Mr Barber found intolerable.