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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Abrahams v London Borough Of Waltham Forest [2002] EWCA Civ 572 (11 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/572.html Cite as: [2002] EWCA Civ 572

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE MEDAWAR QC)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 11 April 2002

1. LADY JUSTICE HALE: This is a claimant's application for permission to appeal against the order made by His Honour Judge Medawar QC in the Central London County Court on 14 September 2001. He dismissed the claim against the claimant's employers for (a) psychiatric injury and (b) physical injury to his ankle, allegedly caused by the employer's breach of duty. The claimant's particular concern related to the cramped conditions in the room where he worked from 1996 until he suffered the ankle injury in March 1998, after which he never returned to work.
2. This application has been listed and adjourned twice already, on 20 December 2001 and 5 March 2002. The applicant acts in person. He does not feel able to come to court because he suffers from severe and frequent panic attacks which are exacerbated by the stress of these proceedings. He has now been accepted by the Benefits Agency as meeting the threshold of incapacity indefinitely. This is his application and, in fairness to both parties, it cannot wait indefinitely. Article 6 of the European Convention of Human Rights provides that everybody is entitled to a hearing within a reasonable time in the determination of their civil rights and liabilities. Hence, I directed that today's hearing should proceed despite the applicant having, once again, told the court that he would not be able to attend. Indeed he is not here, nor has he sent a representative. He has however indicated that he is trying to get the papers to Liberty who have agreed to review them and give him advice. What then to do now?
3. The course of the proceedings was as follows. The applicant says that the hearing was listed for five days, beginning on Monday 10 December 2001. Judgment was given on Friday 14 September 2001. There are no witness statements in the very large bundles presented to this court by the applicant, although they obviously existed as they are referred to in the judgment.
4. The judge says that he had the following evidence before him. First, he had written and oral evidence from the claimant and his witness, Miss Talbot-Vaux, who was a colleague at work. Secondly, he had reports on the ankle injury from two experts, Dr Thurston for the claimant and Dr Candlin for the defendant. They prepared a joint report where they agreed on the injury but not on how long it was before the claimant was fit to return to work. Dr Thurston was not called to give oral evidence; Dr Candlin was called and was cross-examined the claimant. Thirdly, the judge had psychiatric reports from Dr Savla for the claimant and Professor Fahy for the defendant. The judge says that there had been an attempt at a joint report but the claimant had withdrawn his instructions from Dr Savla so there was none available. Dr Savla was not called to give oral evidence. Professor Fahy was called to give evidence and was cross-examined by the claimant. Fourthly, he had the written and oral evidence of the claimant's manager, Mr Kilgariff. There was some cross-examination by the claimant but it was unfinished.
5. There was also evidence from Mr Carlile, the defendant's professional Health and Safety Adviser, but he was not cross-examined. I do not know what his witness statement said, but the claimant relies quite heavily on the risk assessment which he did in September 1997 (after, the claimant says, many complaints about the cramped conditions in his room). This states that there was inadequate space for the number of people working in the room and that the number of files and documents on the floor and under the desks was a safety hazard.
6. The judge's conclusions on the two matters of the claim were as follows: (a) the ankle injury happened when the claimant was reaching over his desk to get a copy of a document out of his printer. He caught his foot against the office chair caster, tripped and injured his ankle. There was nothing wrong with the claimant's chair. He was responsible for the organisation of his own work place, and nobody else was to blame for his decision to reach over and get the document rather than hold get hold of it in some other way. Hence the judge rejected that aspect of the claim which he would have valued in the region of £5000; (b) he accepted Professor Fahy's evidence that the claimant was not suffering from a recognised psychiatric illness. His problem was an underlying personality tendency. There was therefore no liability for that reason but, in any event, it was not reasonably foreseeable that his working environment would give rise to a risk of mental illness before March 1998 when he suffered his ankle injury, so there was no breach of duty.
7. As to (a), it is difficult to think that any court would come to a different conclusion. As to (b), it has always been difficult to establish a claim for psychiatric illness, allegedly arising from stress at work. The applicant's attention has already been drawn to the recent decision of this court in the case of Hatton v Sutherland and to the earlier decision in the case of Garrett v Enfield London Borough Council. It is impossible to succeed if the claimant cannot show that he suffers from a recognised psychiatric illness. This has to be sufficiently foreseeably likely to arise from his work that a reasonable employer should do something about it. If that something is left undone, then the illness has to arise as a result of that failure. It is not enough simply to allege stress or to show that there was stress, unless it can also be shown that the illness was the foreseeable result of an employer's breach of duty.
8. In this case there was no psychiatric evidence called to contradict that of Professor Fahy. The judge would have been open to legitimate criticism if he had nevertheless adopted the different view taken in Dr Savla's report, especially as Dr Savla had seen the claimant, originally, for the purposes of treatment rather than as an independent expert reporting to the court. Having read the report, it seems to me to rely mostly on what the claimant had told him.
9. Hence, on the material currently before me an appeal would have no real prospect of success and the application should be refused. But there is one problem. The judgment records that, while cross-examining Mr Kilgariff, the claimant wanted a break to compose himself and consider what else to ask. There had been similar breaks earlier in the hearing. He was given a short break, but did not return. The court waited for a further 30 minutes and reconvened at 12 noon to continued the case in the claimant's absence. Therefore his cross-examination of Mr Kilgariff was not completed and there was no cross-examination of Mr Carlile, nor did the claimant have the opportunity to make closing submissions.
10. Given that the bulk of the evidence appears to have been heard by then, and that the conclusions of the judge turned on (a) the circumstances of the ankle injury itself, upon which he heard the claimant's own evidence and also looked at the contemporaneous accident report; and (b) Professor Fahy's evidence on which there had been cross-examination, it is unlikely, to put it at its lowest, that the claimant's absence would have made any significant difference to the outcome of the case.
11. However, the claimant, understandably, feels that it was unfair of the judge to continue without him. His explanation is that he asked for an adjournment because of a deterioration in his health on the second day of the hearing, the Tuesday. He agrees that the judge adjourned for 10 minutes. However, on leaving court he suffered a panic attack making it impossible to return. He says that a friend who was with him at court went back into court and told the judge that the claimant was in distress. He was seen by his General Practitioner the same day who prescribed medication and advised him to see a psychiatrist as soon as possible. He presents a medical certificate signed by the GP on Tuesday 11 September 2001, advising that he refrain from work for one week because of panic attacks. On the next day, Wednesday 12 September 2001, his friend, Mr Byfield, took the letter to court. I infer from a date stamp that it was received at the counter of the Central London County Court on 12 September 2001. This letter explained the circumstances of his non-reappearance the previous day. It stated that he was no longer able to attend court because of his illness and that he had no choice but to ask for an adjournment. The claimant saw Dr Savla on the evening of 13 September 2001. Dr Savla's letter of that date states that he was suffering from a severe anxiety disorder precipitated by the case. It said that he had a history of anxiety disorder made worse by the proceedings. He would be unfit to attend court for the next two next 2 weeks. The claimant also attended the Accident and Emergency department with back pain on Friday 14 September.
12. The judgment was delivered that day, but I do not know for how long the hearing had continued in the absence of the claimant. Nor is it clear to me whether any of this information reached the judge. The judgment simply says that the claimant voluntarily withdrew. If the information had reached the judge, I would have expected to find some explanation of why he had decided, nevertheless, to continue with the case, although I can understand why he would have formed that view and he would not necessarily have been plainly wrong to do so. This court could only intervene if he was plainly wrong in the exercise of his discretion.
13. Courts are in great difficulty in being fair to both sides where the litigant is acting in person, but is prevented by illness or other difficulties from conducting the case in the usual way. Some countries solve that problem by not permitting litigants to act in person at all. We do not think it right to place economic barriers on the right of access to the courts. But there are limits as to how far the court can go to accommodate them to the prejudice of other parties to the litigation. This was a five day case for which much preparation had already been done, a great deal of evidence heard and, where, as the experience of this application shows, there would be problems in predicting when the claimant might be fit to continue, given that the case itself might be exacerbating his condition.
14. It is no disrespect to the applicant if this claim fails. The law requires there to be a breach of duty causing injury before there is any liability. If a judge concludes on the evidence that the applicant's problems were not caused by a relevant breach of duty, a litigant may feel that the law is wrong or unjust, but that is another matter. It is tempting to think that this particular applicant would in fact benefit from an end to this litigation and the anxiety it so clearly brings him.
15. Because at the end of the day I believe, on all the information before me, that an appeal has no real prospect of success, I will dismiss this application. But because of the circumstances of the applicant's non-attendance here today, and at the first hearing, I will give him an opportunity to apply to this court for the matter to be reconsidered. That application must be made within 28 days of today. If and when the case is relisted, reserved to myself, the applicant must either attend or send an authorised representative whom the court would be prepared to hear, preferably somebody with legal qualifications, or somebody from Liberty or the Royal Courts of Justice Advice Bureau. Notice must also be given to the other side of any resumed hearing so that they may attend, if they wish, to explain the circumstances in which the judge continued to hear the case.
16. I will also direct that a transcript of this judgment be made available at public expense to the applicant and in fairness also to the other party to the proceedings.
Order: Permission to appeal refused subject to Applicant's representations to be made within 28 days. Copy of transcript to be supplied at public expense to both parties.