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

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    54. During July Mr Barber had separate meetings with the two deputy heads. The judge's findings about these meetings were as follows:

    "[There was] a meeting with the Deputy Headmistress, Mrs Newton, on 16 July 1996. In that meeting Mrs Newton was told by the claimant that he could not cope with his workload and the situation was becoming detrimental to his health. Mrs Newton's reaction to him was similar to that of Mrs Hayward. Despite being told that the claimant had already had to take time from work for stress and depression and that he could not see himself in his post in the immediate future if the work content remained the same, Mrs Newton took no steps to investigate or remedy the situation. Instead she referred the claimant to Mr Gill and ended the meeting abruptly.

    Subsequently, the claimant told Mr Gill of his problems and the background to his problem being referred to Mr Gill. But whilst Mr Gill was more sympathetic in his approach to the claimant's difficulties he took no steps to improve or consider the situation beyond urging Mr Barber to prioritise his work".

    The meeting with Mr Gill was probably on 19 or 20 July 1996, at the very end of the summer term.

    55. Just before the end of the summer term the mathematics department was moved from the school's second floor to the third floor. This added to Mr Barber's distress. During the summer holidays he went camping in Cornwall. But just after his return home from holiday he had a panic attack during the night. He saw his doctor on 20 and again on 21 August; the provisional diagnosis was asthma (from which he had not suffered before).

    56. It appears that when Mrs Hayward told Mr Barber in June 1996 that early retirement was out of the question for him, she was arranging her own early retirement. This was announced about five weeks before the end of the summer term. At the beginning of the autumn term Mr Gill was acting temporarily as head teacher, with the Ofsted inspection due in November. Mr Gill told Mr Johnson, a colleague of Mr Barber, that he was concerned about Mr Barber. He hoped that Mr Johnson would keep an eye on Mr Barber, but did not actually ask him to do so. Nor did Mr Gill (who must have had many urgent demands on his time) take the initiative in asking Mr Barber how he was getting on.

    57. The judge did not make any detailed findings about the events of the autumn term. Mr Barber's account (and the judge accepted him as a truthful witness) was that he found himself with the same or even possibly a slightly heavier workload. He had only four free periods a week. He went to see his doctor on 19 September. He was not advised not to go to work. The doctor's notes of this consultation are as follows:

    "E: Asthma

    S: OK. Chat. Pressures returning at work".

    58. Mr Barber evidently felt that he had failed to explain to the doctor just how bad his condition was. On 25 October he wrote a long letter to his doctor since (as he said) he found that a better way of communicating. He described his problems and symptoms in detail. The letter ended,

    "The whole secondary school scene acts as an automatic trigger reaction that sets off these problems within me that I can't control so that now I feel sleepy and drained in the classroom and I know that at school and at home things are spiralling out of control.

    I therefore seek your support to be referred for some counselling and I assume you will not deny me this opportunity for help at a time when I am struggling to stay on top of my job".

    The doctor replied promptly asking Mr Barber to come and see him. But before Mr Barber had complied with this invitation a crisis occurred at school. Mr Barber lost control of himself and started shaking a pupil. He left school that day and never returned to his teaching post. The two psychiatrists who subsequently examined Mr Barber as expert witnesses agreed that he was suffering from moderate or severe depression.

    59. The judge gave a careful reserved judgment divided into twelve sections. The sixth and seventh sections (headed "Basic Findings of Fact" and "The Alleged Breach of Duty") are the longest and the most relevant to this appeal. The judge has been criticised for dealing with questions of causation under the heading of "Basic Findings of Fact" before he had found (as he did in the next section) a breach of the County Council's duty of care as an employer.

    60. In my opinion there is not much substance in that criticism. After putting in a defence which consisted largely of blank non-admissions and denials, the County Council at trial put forward a case, largely based on the evidence of Mrs Hayward, that Mr Barber was a malingerer, or something close to it, who had been trying to work the system so as to get a larger pension on early retirement on grounds of ill-health. The judge had to make an assessment of the credibility of the witnesses whom he saw and heard. He did not find Mrs Hayward to be a convincing or impartial witness. He found Mr Barber to be an honest witness. It seems to me that it was right for the judge to make these findings at an early stage in his judgment. He found it convenient, in the same part of his judgment, to make findings about the three theories which had been put forward, largely it seems by Mrs Hayward, as to the reasons for Mr Barber's mental breakdown (that is the failure or non-development of an incipient relationship with a woman teacher, Mr Barber's apprehension about the pending Ofsted inspection, and the accusation of malingering already mentioned). I do not think the judge can be criticised for structuring his judgment in this way.

    61. The judge's conclusions as to the breach of the employer's duty of care came after his findings on Mr Barber's meeting with Mrs Hayward in June 1966:

    "In my judgment this response to the claimant's difficulties was inadequate. At the least his position needed investigation.

    However the claimant was not given any help to alleviate his workload".

    Similarly the judge observed, after his findings on the meetings with Mrs Newton and Mr Gill:

    "This response was inadequate given the history, which I have set out above.

    In my view a prudent employer, faced with the knowledge of work overload dating back to the autumn 1995 and increasing into 1996 such that the employee had had to take time off work for stress, would have investigated the employee's situation to see how his difficulties might be improved. This becomes the more clear when the senior management team became aware through the meetings with Mrs Hayward, Mrs Newton and Mr Gill that the claimant was in difficulty coping and was expressing to each that his health was declining. The prudent approach would have been to investigate and provide assistance if only in the short term. It must have been apparent that with time off work for stress in May 1966 the risk of injury to the claimant's mental health was significant and higher than that which would have related to a teacher in a similar position with a heavy caseload".

    62. The judge also attached importance, in reaching these conclusions, to the guide "Managing Occupational Stress: A Guide for Managers and Teachers in the Schools Sector" published in 1990 by the Health & Safety Commission:

    "That document . . . highlighted the need to be sensitive to stress in teaching staff. It also highlighted the need to be aware of stress and the need to develop a supportive culture for teachers. The senior management team at East Bridgwater were not aware of this HSE guide nor did they in any sense follow its content. Had they done, the crisis which affected the claimant would in all probability have been averted".

    63. The Court of Appeal's composite judgment (on the County Council's appeal and the three appeals heard with it) begins with three sections: Introduction; Background Considerations; and the Law. Mr Barber rightly directed hardly any criticism towards these. The exposition and commentary in this part of the judgment is a valuable contribution to the development of the law (although your Lordships have heard no argument on the section dealing with apportionment and quantification of damage, and I think it better to express no view on those topics).

    64. In particular the Court of Appeal has recognised that although injury which takes the form of psychiatric illness is no different in principle (for a primary victim) than physical illness or injury, the causes of mental illnesses

    ". . .will often be complex and depend upon the interaction between the patient's personality and a number of factors in the patient's life. It is not easy to predict who will fall victim, how, why or when" (para 5).

    This uncertainty has two important consequences. First, the reaction of some of Mr Barber's colleagues—"We are all overworked, and your workload is no worse than anyone else's"—is entirely understandable, but ultimately irrelevant. Overworked people have different capacities for absorbing stress, and different breaking points. Hence (and this is the second point) the importance of what the employee tells the employer. Senior employees—especially professionals such as teachers—will usually have quite strong inhibitions against complaining about overwork and stress, even if it is becoming a threat to their health. Personal and professional pride, loyalty to the head teacher and to colleagues, and the wish not to add to their problems and workload, may all influence a teacher not to complain but to soldier on in the hope that things will soon get a little better.

    65. The Court of Appeal set out its view on this point in para 29 of its judgment:

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

    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."

    66. The Court of Appeal concluded that the judge had been wrong in finding a breach of the County Council's duty of care. Its reasons are set out at paras. 57 to 59 (with a fuller statement and discussion of the facts at paras 139 to 174 in the Appendix). I will set out paragraphs 57 to 59 in full:

    "[57] This was a classic case in which it is essential to consider at what point the school's duty to take some action was triggered, what that action should have been, and whether it would have done some good. Instead, the judge first considered whether the illness was caused by stress at work and reached the conclusion that it was. No doubt this was because the school had argued that Mr Barber's breakdown was caused by other things, and the judge had to resolve that issue. There was certainly evidence entitling him to hold that stress at work had made a material contribution. But that in itself was not enough to lead to the conclusion that the school was in breach of duty or that its breach caused the harm.

    [58] Mr Barber did not think of himself as a candidate for psychiatric illness until it was diagnosed in May 1966. The first the school knew of any possible adverse effects upon his health of the difficulties at work which they were all experiencing was after his return. He simply told Mrs Hayward that he was not coping very well. He made a more explicit reference to his health to Mrs Newton and Mr Gill, but did not explain the symptoms from which he was suffering. This was just before the summer holidays, which are usually a source of relaxation and recuperation for hard-pressed teachers. Indeed he was unable to tell his own doctor about his symptoms until the month before the crisis arose. He told no one at school of any problems during that term.

    [59] In those circumstances 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 might have been different if Mr Barber had gone to Mr Gill at the beginning of the autumn term and told him that things had not improved over the holidays. But 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. Given the speed with which matters came to a head that term it might be difficult to sustain the judge's finding that temporary help would have averted the crisis. But in our view the evidence, taken at its highest, does not sustain a finding that they were in breach of their duty of care towards him".

    67. My Lords, the issue of breach of the County Council's duty of care to Mr Barber was in my view fairly close to the borderline. It was not a clear case of a flagrant breach of duty any more than it was an obviously hopeless claim. But the judge, who saw and heard the witnesses (including Mr Barber himself, Mrs Hayward and Mr Gill) came to the conclusion that the employer was in breach of duty, and in my view there was insufficient reason for the Court of Appeal to set aside his finding. The Court of Appeal was concerned about the timing of the breach, but for my part I do not think there is much room for doubt about that. The employer's duty to take some action arose in June and July 1996, when Mr Barber saw separately each member of the school's senior management team. It continued so long as nothing was done to help Mr Barber. The Court of Appeal evidently considered that Mr Barber was insufficiently forceful in what he said at these interviews, and that he should have described his troubles and his symptoms in much more detail. But he was already suffering from depression, and neither Mrs Hayward nor Mrs Newton was a sympathetic listener. What the Court of Appeal failed to give adequate weight to was the fact that Mr Barber, an experienced and conscientious teacher, had been off work for three weeks (not two weeks, as the Court of Appeal thought at para 160) with no physical ailment or injury. His absence was certified by his doctor to be due to stress and depression. The senior management team should have made inquiries about his problems and seen what they could do to ease them, in consultation with officials at the County Council's Education Department, instead of brushing him off unsympathetically (as Mrs Hayward and Mrs Newton did) or sympathising but simply telling him to prioritise his work (as Mr Gill did).

    68. It was argued that the school as a whole was facing such severe problems (with all the teachers stressed and overworked, no budget for more staff, and the Ofsted inspection looming) that there was nothing that the school could have done to help Mr Barber other than advising him to resign, or in the last resort terminating his employment (a point on which the Court of Appeal made some observations in para 34 of its judgment). I would not accept that. At the very least the senior management team should have taken the initiative in making sympathetic inquiries about Mr Barber when he returned to work, and 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 by itself have made a real difference. In any event Mr Barber's condition should have been monitored, and if it did not improve, some more drastic action would have had to be taken. Supply teachers cost money, but not as much as the cost of the permanent loss through psychiatric illness of a valued member of the school staff.

    69. Although it is generally unprofitable to contrast the facts of one case with those of another, I would refer briefly to the Scottish case of Cross v Highlands and Islands Enterprise [2001] IRLR 336, which was cited by Mr Collender. That was a very sad case of a promising 39-year old executive, employed in a job in which (because of geographical factors) close day-to-day supervision of his work was impossible. He became ill with depressive illness and killed himself. The employer was held not liable because no causative breach of duty was established. After the employee had been off work with depression, his line manager travelled to see him and spent almost the whole day discussing his work and his future with him. He reduced his responsibilities and continued to maintain contact with him by telephone (see para 84). Unfortunately the depression continued, but the employer was not liable for the tragedy which ensued because (para 86)

    ". . .the evidence does not establish that objectively the job was the problem. For all the defenders knew, they were dealing with an employee who, for reasons that were not clear, had become unable to cope with the job that he had previously managed successfully".

    The facts were therefore very different from those of the present case.

There is no doubt, in Mr Barber's case, that the job was the problem.

    70. The Court of Appeal also attached weight to the fact that Mr Barber did not make any further complaint during the autumn term. The judge had to assess the significance of that but he evidently (para 56) saw Mr Barber's nervous breakdown in November 1996 as caused by failures on the employer's part which had continued since the summer term. During the autumn term Mr Barber was still ill with depression, and he seems to have concluded, after his experiences in the summer, that further complaint would be pointless. He had also (as he saw it) failed to obtain help when he went to his doctor on 19 September 1996 and his doctor did not advise him not to go to work. But as the senior management team did not know that Mr Barber had been to see his doctor, they cannot take much comfort from the doctor's opinion. 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, and that that caused Mr Barber's serious nervous breakdown on 12 November 1996.

    71. I would allow this appeal and restore the judge's judgment in favour of Mr Barber, but in the reduced agreed sum of £72,547.02 together with interest at the judgment rate from 8 March 2001.

 
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