Introduction
The plaintiff worked for the defendants ("the Council") as an area social services officer from 1970 until December 1987. His position was one in middle management. He was responsible as manager for four teams of social services field workers in the Blyth Valley area of Northumberland. His office was at Cramlington. He in turn was answerable to the Assistant Director of the Field Services Division of the Council's Social Services Department. That was Mr D N Davison. His office was at County Hall, Morpeth.
Blyth Valley was one of five social service divisions in Northumberland. It was a predominantly urban area and comprised a new town development at Cramlington with a relatively high proportion of young families with children many of whom had recently acquired houses which had previously been local authority housing. It was an area which because of the social profile of the population was particularly productive of child-care problems falling within the ambit of responsibility of the Social Services Department. Amongst these problems in the course of the 1980s child abuse references were particularly prevalent. The population in Blyth Valley rose during this period and so did the volume of work which had to be undertaken by Mr Walker and his teams of field workers. Although the number of field workers in the area had been increased during the period 1974 to 1978, there was no increase after 1978. By 1986 the pressure of work on those Social Service workers who were working in Blyth Valley had become very considerable. Not only were the teams of field workers under increased pressure, but so was Mr Walker. The stress and anxiety created by that work pressure was intense. The increasing incidence of child abuse cases was particularly stressful for all concerned: for the field workers whose cases they were and who had to deal directly with the families and children and for Mr Walker whose responsibility it was to make provision for the adequate manning of such cases by his teams of field social workers and for the holding of case conferences and the production of reports in respect of each child referred to the Department in his area of Blyth Valley.
At the end of November 1986 Mr Walker suffered a nervous breakdown. He suffered from mental exhaustion, acute anxiety, headaches, sleeplessness, irritability, inability to cope with any form of stress and a tendency to weep and to become upset. Under medical advice he remained off work until 4 March 1987. Mr Walker was 50 on 10 March 1987.
While off work Mr Walker was treated by his family doctor and was seen by Dr D A Stephens, a very experienced psychiatrist who had known him professionally for many years by reason of Mr Walker's social services work. Mr Walker had no previous history of mental disorder and Dr Stephens observed that "his anxieties are sharply focused on work pressures, while a comprehensive review of all other areas of his life fail to produce any evidence of concurrent problems". He had known Mr Walker "as a stable, industrious and committed colleague for many years and was surprised to hear about his recent difficulties".
It is common ground that Mr Walker's illness was attributable to the impact on his personality of his work.
By 11 February 1987 Mr Walker had discussed his position in the Social Services Department with Mr Davison, his immediate superior. Dr Stephens had advised Mr Walker that he should not go back to the same level of work responsibility as before, Mr Davison was very sympathetic and concerned that Mr Walker should settle back into his old job as Blyth Valley area officer. Mr Walker made it clear to Mr Davison that it was necessary to take the pressure off his job by splitting the Blyth Valley area into two divisions. To this Mr Davison did not agree. However, in the course of their discussion it was agreed that Mr Walker would on his return to work be assisted in his duties as area officer by Mr R D Robinson, a principal field work officer, who had already been sent from County Hall to the Cramlington office to cover for Mr Walker during his illness. Mr Walker was given to understand that Mr Robinson would be seconded to him temporarily, but for as long as he was needed to back up Mr Walker. Mr Davison also told Mr Walker that he would visit the Cramlington office weekly to see Mr Walker. He was also to be given assistance from other area officers in chairing case conferences in child abuse cases. The impression of that discussion which Mr Walker conveyed to Dr Stephens was recorded by Dr Stephens as being that "the content and responsibilities of his job have been substantially altered in his favour".
In the event, after Mr Walker returned to work, he was not visited by Mr Davison, and Mr Robinson had such a large work load from his own cases from County Hall that he was only intermittently available to assist at Cramlington. Within a month of Mr Walker's return to work Mr Davison told Mr Walker that Mr Robinson was needed to cover for other members of staff who were away and could not continue to work at Blyth Valley. Mr Robinson's very limited support was withdrawn by early April 1987, at which point, according to Mr Walker, he was exhausted. Not only was he standing in at Blyth Valley, but he was also attempting to keep up with his main duties at County Hall. He had, in the course of the period after Mr Walker's return, been appearing only intermittently to help Mr Walker.
Mr Walker found that during his absence a substantial volume of paperwork had built up and was waiting to be dealt with. It was May before he cleared the backlog. In the meantime the number of pending child care cases in Blyth Valley was increasing at a considerable rate. The number of pending cases rose from 148 to 174 between March/April 1987 and July 1987. Mr Walker, however, had only very limited additional support during 1987 by comparison with what had been available to him in 1986. He was, on occasion, able to enlist assistance from area officers from other areas in chairing review meetings for child abuse cases. Nevertheless, as the work built up in March-July 1987, he began once again to experience stress symptoms. He took two weeks holiday in August 1987, but in September shortly after his return to work, the stress symptoms again built up and on 8 September he was obliged to tell Mr Davison that he could not go on. He was having to postpone doing urgent work and he was very worried that his state of mind was such that his judgment in relation to decision-taking was being adversely affected. On 16 September he was given medical advice to go on sick leave. He was diagnosed to be affected by a state of stress-related anxiety.
In the event he suffered a second mental breakdown and was obliged to retire from his post, having in effect been severely mentally wounded. It is said that in consequence he was rendered quite incapable of ever returning to the kind of social services work which, for 20 years, had been his career and indeed of taking on ever again work which involved the shouldering of significant responsibilities. His confidence in himself was permanently destroyed. In February 1988 he was dismissed by the Council on the grounds of permanent ill-health.
Mr Walker now claims damages against the Council for breach of its duty of care as his employer in failing to take reasonable steps to avoid exposing him to a health-endangering work load. He contends that the Council ought to have appreciated that the work load to which he was exposed might endanger his health, in view of the warnings of excessive work-loading in Blyth Valley which he had from 1984 to 1987 repeatedly given to his superiors, notable Mr Davison, and in view of the inherently stress-creating nature of social services work of that kind.
The Factual Basis for the Plaintiff's Claim
The factual basis upon which Mr Walker puts his claim may be summarized as follows.
In general the nature of much of the work in the social services is stressful. In particular it is likely to cause anxiety to those who have difficult and upsetting cases to deal with, notably field workers, and to those who are called to participate in decision-making as to how particular cases or groups of cases should be dealt with. Amongst the most difficult and stressful cases are child abuse cases. Particular stress is created by many of those cases because social workers often have to decide whether it is justifiable to take the child in question and perhaps other children away from the parents, knowing that a wrong decision may have extremely serious consequences, involving the risk of death in extreme cases and of far-reaching affects on the life of the child and its family in others. The expert witnesses, Professor Parsloe, Mr Hayes and Professor Sims called by the plaintiff and Dr Wood called by the defendant Council all acknowledged that social work could be of a stressful nature and Professor Sims and Dr Wood had experience in treating social workers who had developed psychiatric illnesses in the course of their work.
Having heard this expert evidence, I am satisfied that although sheer volume of work often imposes stress which can cause psychiatric damage to a normally robust personality, the character of the work can itself impose stresses capable of causing such psychiatric change, regardless of volume of work. A given normal personality may develop mental illness when the character of the volume of work which has to be undertaken is intrinsically stressful, notwithstanding that less stressful work of equal volume might have no detrimental effect.
The intrinsically stressful character of child abuse cases would clearly be expected to bear heavily on field social workers whose cases had to be managed. I am, however, quite satisfied that not only would such cases give rise to stress in field workers, but also in those who, like Mr Walker, had the responsibility of participating in the decision-taking which such cases demanded. Once a child care case had been referred it would have to be investigated immediately in a general way by the area officer -Mr Walker - and arrangements made with the case handler for a case conference to be held within three days. That would take the form of a meeting which would be attended by those having all the expertise regarded as necessary for deciding what course to take: social workers, representatives of the paediatric service, doctors, perhaps representatives of the Probation Service, the principal officer from the Field Services Division of the Department at County Hall. There would have to be an independent chairman - that is to say someone suitably qualified in the social services who was not directly involved in the case. That chairman would, in the Blyth Valley area, be the area officer, Mr Walker, or the leader of one of the four teams in that area which was not seized of that particular case. The area officer would have to decide who chaired each such case conference and to consider whether he, as area officer, ought to do it or whether it was suitable for control by a team leader and, if so, whether any of the team leaders was available to attend such a conference.
Sometimes these conferences were long and difficult, lasting up to 3 hours. The chairman was responsible for producing a report on each such conference and obtaining the approval of it within 7 days of the conference by those who had participated. In order to do that the chairman had to take detailed notes during the conference which he would then use as the material for his report. The effect of the evidence was that it was peculiarly difficult both to take a sufficiently accurate note and to participate sufficiently in the discussion. Mr Walker firmly considered that the Social Services Department ought to provide clerical staff to take notes. This view was shared by Mr Ride, one of his team leaders who was very experienced and often chaired case conferences and who took over much of Mr Walker's work when he was away and in particular on the occasion of the first breakdown in 1986. It was also the view of Mr Hayes who was called as an expert in social work management techniques. Indeed, it was a problem also recognized by those in management at County Hall. As will appear later in this judgment, lack of resources was the reason for not providing such assistance during much of the period up to 1986. Mr Walker's evidence, which I accept, was that in 1986 he was chairing an average of two case conferences per week.
Subsequent to the initial case conference, the position of each child had to be reviewed at least every six months. That would involve holding a review meeting, in many respects similar to an initial case conference. Mr Walker, as area officer, did not consider it necessary to attend all such reviews, although he would be present and act as chairman in difficult cases. Otherwise review conferences were chaired by team leaders from a team other than that which had referred the child. I am satisfied that the case conference system as it existed from 1984 to 1987 placed additional stress on Mr Walker.
In addition to the intrinsically stressful character of the work of servicing the child care and in particular the child abuse cases, an independent source of stress on Mr Walker was the structure and manning of the management of social services in Northumberland in general and Blyth Valley in particular. Of the five social services areas into which the county was divided, two, Blyth Valley and Wansbeck, were predominantly urban, whereas the other three were rural. The urban areas, particularly Blyth Valley, had grown substantially in population between the mid 1970s and 1985 by which time Blyth Valley was by far the most densely populated area. By 1987 its population had risen to 78,200, the next highest being 59,600. The number of child abuse cases registered in the Blyth Valley area increased steadily during 1975-1986. Of these cases Blyth Valley had quite the heaviest load numerically in the county area. During the same period the Social Services Department was also having to provide social workers to man guardian ad litem duties. This was a statutory requirement which added to the responsibilities of the social services. It bore particularly heavily on Blyth Valley during the 1980s. The demand for field services social work in general therefore grew throughout the period from 1980 and its growth was entirely outside the control of the Department. It follows that throughout Northumberland the Social Services Department was confronted with a growing demand for services some of which, such as guardian ad litem duties had to be provided as a matter of statutory duty, some of which it was empowered to provide and all of which were needed by the public with varying degrees of urgency. The coal miners' strike in the early part of the 1980s put heavy pressure on the social workers in Blyth Valley.
Mr Walker's key role in managing his area was to try to keep up with the growing demand for services by deploying his four field work teams as effectively as possible without imposing on the individual social workers so much work that they were unable to carry on. Obviously he could only do this to the extent to which he had sufficient staff for the services required. There was a finite ability to cope from a fixed body of field workers. Logically, if the growing demand for social services was to be effectively accommodated beyond that capability there must be an increase in staff. The only alternative would be a reduction of services on a prioritisation basis. That would involve the withdrawal from the public of some social services that hitherto had been provided. That in turn would involve management and field workers alike as caring and conscientious people in stressful and unattractive choices.
Mr Walker's efforts to maintain field services in his area, while at the same time not driving his teams beyond their workload limits, led him from 1985 repeatedly to try to persuade his County Hall management superiors, in particular Mr Davison, of the urgent need for the restructuring of social services in Northumberland so as to make available more team workers in Blyth Valley where Mr Walker perceived the need to be greatest and to reduce the burden of management on the Blyth Valley area officer by splitting the area into two, each with its own area officer -one centred at Blyth and one at Cramlington. In relation to these two courses Mr Walker founded his campaign on his perception that (i) he, as area officer of Blyth Valley area, {and to a lesser extent the area officer of the Wansbeck area) was shouldering a far greater management burden with four teams of field workers than were the area officers of the three rural areas each of which managed two teams and serviced a materially lower population with a far lower incidence of child care cases, and (ii) that, because the demand for social services in the three rural areas with their significantly lower populations was much lower in relation to the number of team workers and officers employed in those areas, the Council could redistribute social workers from those areas into Blyth Valley and thereby relieve the pressure on Mr Walker and his existing staff.
Mr Walker, sometimes in conjunction with the other area officers and sometimes on his own, produced from 1985 onwards reports and memoranda to his superiors at County Hall which expressed the urgent need to alleviate the work pressures to which he and his social workers in Blyth Valley were subject. The essence of many of these papers was recognition that the Council would be unwilling to approve increased resources for social services but an urgent request for a redistribution or reorganisation of existing personnel or at least systematic management guidance so that social workers could do the most seriously-needed work, such as child care referrals. Thus the flavour of dismay and frustration felt by the area officers in late 1985 is illustrated by a passage from a Review of Working Practices prepared by the Director of Social Services in August 1985:
"Since the late 1970s, many factors have effectively combined to prevent a sufficient allocation of senior staff time to stand aside and look dispassionately at alternative and potentially more productive ways of providing and managing services other, that is, than piecemeal. Hampered by financial constraints and the restraining influence of manpower watch, staff at all levels have been hard pressed coping with the sheer volume of work generated by new or amending legislation, major policy reviews of services to children and the elderly and increasing demands for services, ostensibly as a result of declining social circumstances and greater public awareness of what Social Services are about. Consistently high workloads have contributed to some loss in job satisfaction and low morale and the continual struggle to keep heads above water has had the effect of stifling innovative practices and the pursuit of many worthy objectives."
To this Review the area officers jointly responded on 2 0 September 1985 in a detailed critique which included the following:
"What may be needed is a closer involvement of Senior Managers in supporting and monitoring developments in the Areas against some agreed standards or objectives. We do not necessarily reject the rather specialised approach you suggest but feel the concept is very woolly and requires more description and discussion.
Finally, we would wish to have seen a little more reference in your report about the Departments overall objectives given the current economic climate. Do we continue trying to accommodate increased demand, new legislative requirements and changes in professional practices as we are at present by spreading the jam even thinner. Or, do we circumscribe our involvement in a way which ensures and effective professional service to the most vulnerable, even if this means the less vulnerable get little or no service at all.
This is our day to day dilemma and one which in our experience is not faced up to at County Hall. What is it exactly our Department is trying to achieve and how do we arrive at a consensus about the way ahead. Whatever interpretation is placed on the effectiveness of current structure our experience is one of separatives between field and residential divisions and between Areas and headquarters."
This exchange gave rise to a very substantial report on Workloads and Priorities in the Field Services Division prepared by the area officers and issued to Mr Davison in October 1985. Having set out statistics which showed, amongst other things, the population sharply rising in Blyth Valley, the considerable increase in NSPCC child registrations between 1979 and 1985 -from 15 to 72 in Blyth Valley - and an increase in statutory child care cases and other responsibilities and which further showed that between October 1979 and July 1985 there had been no increase in the social services staff from area officers downwards in the Field Services Division, this report in a concluding passage observed:
"The question of effective use of manpower raises issues far beyond the way in which individual social workers and area managers approach specific tasks, or even how they might prioritise individual tasks or situation. Such issues include whether we should focus our efforts on responding to demand or whether we should try to seek out need based upon some other criteria, whether we should help all client groups or focus on only some, whether we should try to provide a preventative service as well as a casualty service, what do we see as the appropriate role of social work staff of different levels within the development of preventative services. What is a reasonable workload for a social worker and what programmes are possible bearing this in mind. What are we really trying to do in a situation which has many options and limited manpower resources? Should they focus intensive amounts of time on a few, or provide a less intensive service to more people. What should they be trained for. The Area Officers feel that questions of overall strategies, objectives, programmes and foci are questions not only for the Area Officers but for staff at all levels and elected members and it is important to get some consensus and some common understanding on these issues."
This then was a clear call from the area officers for management guidance from County Hall.
On 29 November 1985 Mr Walker with Mr Pattie, the area officer from Wansbeck, the only other predominantly urban area, attended a meeting with Mr Davison to tell him of their particular concerns about the provision of social services in their areas. Mr Walker told him that there was too much work for one area officer in Blyth Valley and that the area should be split into two. He said he did not think he could go on shouldering that volume of work which he then had. Mr Pattie said that in order to relieve work pressure in the urban areas social workers should be transferred from the rural areas. Mr Davison appeared sympathetic but said that neither solution ought to be adopted in view of the fact that within about two years there was to be a restructuring of social services in the county. Mr Walker said that if things were changed within two years he could go on, but he could not see himself going on beyond that. Sadly, Mr Walker's anticipation proved to be unduly optimistic.
On 11 March 1986, after having instituted in his area a local reorganisation of field worker teams into two specialist child care and two specialist adult care teams, Mr Walker wrote in these terms:
"One of the major reasons for this reorganisation is to recognise the increase of family and child care and NSPCC work in this area over the past 10 years. The population has also increased in that time by almost 25%, but staffing levels have remained unchanged. The recent Committee report on Child Abuse acknowledged that the County-wide increase in child abuse work -mainly in Blyth Valley and Wansbeck Areas - required a further 9 specified posts. I want to suggest that since child abuse is this department's first priority, those 9 posts are taken from the existing staff and put where they are needed. This will mean a hard look being taken at the statutory work being done in the County, and some of the luxury service being provided in the more urban areas and hospitals, being trimmed back to enable first priority work to be done. I accept that this will have considerable implications and also will have political repercussions, but this area - and I believe Wansbeck also -cannot go on absorbing the bulk of child and family care and child abuse in the County, when other areas are hardly aware of the problem. This applies also to Senior Social Workers who in this area are needed for child abuse work, but have had vital time resource arbitrarily taken from them to the Guardian ad Litem work."
Mr Walker said in evidence that this was a plea for action by top management. If the position in Blyth Valley was not alleviated they saw themselves "going to the wall".
In March 1986 Mr Walker also instituted in the Blyth Valley area a rota system for his team leaders to chair half the child abuse case conferences and he the remainder, including the more difficult cases. Adult care team leaders were to chair child review cases.
As the months passed in 1986 the pressure of work increased. In August one of the more experienced team leaders, George Brown, was moved to another job in social services because of his inability to prepare proper case conference reports without delay. That made Mr Walker's job more difficult. He had to cover for part of Mr Brown's work and eventually Mrs Hill, a part-time senior social worker, was taken on as a part-time team leader. A request from Mr Walker for planned overtime pay for acting down to cover until Mr Brown was replaced was rejected by Mr Davison who wrote that the way in which the situation can best be managed is "...... by all of your team leaders and, if necessary, yourself 'mucking in together' to keep things going until such time as a replacement can be appointed".
I find that in the period from early 1985 to the occurrence of his first illness in November 1986 a distinct and material cause of stress and anxiety for Mr Walker was his failure to persuade his superior managers to take any steps to alleviate the work pressure on the Blyth Valley social workers in general and himself in particular. He was in reality trapped in a situation where on the one hand he was unable to control the increasing volume of stressful work confronting his teams of field workers and himself and where on the other he was unable to persuade superior management to increase staff or to give management guidance as to work distribution or prioritisation. In the circumstances, by the time of his first illness there was little Mr Walker could do to alleviate the position by reducing the pressure on himself or his teams. The seriousness of the situation in Blyth Valley is illustrated by a report of Mr Robinson, Principal Field Work Officer, written on 10 December 1986, after he had been sent by Mr Davison to the Blyth Valley area to assist Mr Ride cover for Mr Walker while he was away ill. He wrote with reference to one of the child care teams:
"The team are, of course, quite anxious about the current situation and feel vulnerable and tired. Morale is low and they know they cannot cope with the statutory workload let alone take on new referrals or do much in the way of preventative work with families.
I am told that the team has 48 children registered with the NSPCC and some 101 statutory cases. Whilst Les Davison agrees that some NSPCC registered children are included in the statutory numbers and may be in a safe placement, even if there were 100 cases this would, in my view, be too much for 3½ staff to cope with in any real sense."
The situation is obviously quite chronic and I very much suspect that even if when the team are at "full strength" their ability to meet expectations - theirs or the departments - is very limited."
Only a ruthless system of prioritisation resulting in a substantial withdrawal of services from the public could have had any immediate effect and that could not have been done by Mr Walker's decision alone. It would have to be approved by County Hall and, having regard to possible political repercussions, that approval was not certain to be given.
I am further satisfied that the causes of stress which I have identified were the only external circumstances which brought about Mr Walker's first illness. It was thus the operation of those circumstances on his personality which brought about his first breakdown.
Was the Plaintiff's First Illness caused by a Breach of the Defendant's Duty of Care?
The plaintiff's case is that the immediate superiors of Mr Walker knew that social work is particularly stressful, that such stress can give rise to mental illness, that the workload falling upon Mr Walker as area officer of the Blyth Valley area was by 1984 such as to impose increasing stress on Mr Walker, that such workload became more stressful during the period 1984-1986 and that accordingly they ought reasonably to have foreseen that, unless they took steps to alleviate the impact of that workload, there was a real risk that Mr Walker would suffer mental illness. In those circumstances, the Council's duty as employer of Mr Walker being to take reasonable steps to provide a safe system of work, it was in breach of that duty in as much as the system of work was a threat to mental health which remained unremedied and caused Mr Walker's mental breakdown.
The Council's case is that, while it concedes that it owed to Mr Walker a general duty to exercise reasonable care to provide him with a reasonably safe working system and to take reasonable steps to protect him from risks which are reasonably foreseeable, there was no breach of that duty: it was not reasonably foreseeable at any material time that Mr Walker's work would impose upon him such stress as to give to a real risk of mental illness and alternatively, if such risk was reasonably foreseeable, the Council did not in all the circumstances, in particular, the budgetary constraints to which the Social Services Department was subject at the time, act unreasonably in failing to relieve the pressure on Mr Walker. Mr Simon Hawkesworth QC, on behalf of the Council has submitted that, in as much as the only effective remedial measures would have involved taking on more staff and therefore the allocation of additional funds for that purpose by the Social Services Department or, indeed the Council itself, and since the application of the Council's limited resources involved policymaking decisions as distinct from operational decisions, the Council cannot be said to have been in breach of any duty of care in having failed to take those decisions.
By 1984 Mr Davison, as a trained social worker, was aware in general that social work could be extremely stressful and that child care work and, in particular, child abuse cases might be matters of considerable anxiety to social workers. His own experience of social work and published material which existed at that time would have made this apparent. I am also satisfied that Mr Davison knew from his training that excessive work-stress could cause mental illness and further that the person under stress might not appreciate that his health was being damaged. Furthermore, Mr Davison was well aware that by 1985 there had developed in the Blyth Valley area a demand for the provision of social services, particularly in the area of child care, so great that the staff were operating on a crisis-management basis, and were so inundated with child care and guardian ad litem duties that they were obliged substantially to neglect other areas of social work - particularly preventative social work - which good practice required should be carried out in the area. Mr Davison also knew by this time that this situation had arisen because demand for social services, particularly child care, had substantially risen in Blyth Valley without there having been, over the previous 10 years, any increase in staff to deal with the increased demand.
Having heard Mr Davison in the witness box for many hours I have no doubt that from 1984 onwards, if not much earlier, he realized that social services in Northumberland were both understaffed and inadequately organized in the sense that there was a serious and urgent need for a re-structuring of the field services department to achieve a redistribution of existing staff so as to make staff available for those services which had the highest priority, in particular child care, and that the consequence of any such restructuring or redistribution of staff would be to alleviate the pressure of work in Blyth Valley and Wansbeck, the two urban areas. I am further satisfied that he fully appreciated from 1984 onwards that the rapidly increasing demand for field services in Blyth Valley by comparison with the other areas, particularly for child care services, was making and would make Mr Walker's management responsibilities increasingly difficult to carry out. He further appreciated that Mr Walker, as a manager, had a growing sense of grievance that nothing was being done by the Department at County Hall level to alleviate the position either by dividing Blyth Valley into two areas or by shifting staff from the rural areas or by taking on more staff to relieve the pressure in Blyth Valley. It is also clear on the evidence that from the meeting of 29 October 1985 Mr Davison must have known that Mr Walker then believed that, unless steps were taken which had the effect within two years of making more staff available in Blyth Valley and in removing from Mr Walker the current problem of managing a much under-staffed child care service, he would not be able to carry on managing the area.
Mr Davison's perception of Mr Walker as an area manager was based on having known him personally since about 1972, shortly after both of them had started in social work. He saw Mr Walker as a conscientious area manager, somewhat lacking in confidence in his team leaders and therefore likely to become rather too involved in the chairing of child care case conferences, instead of delegating that function to team leaders. He was seen as very ready to send off memoranda to County Hall detailing his concerns about the provision of social services in Blyth Valley, which Mr Davison saw as an effort to cover his own back in case there was political criticism of shortcomings of the services in that area.
It is clear on the evidence that Mr Davison realized that Mr Walker had a very difficult management position, that many services in the area were by 1985 being run only on a crisis-management basis, that morale amongst social workers in Blyth Valley, including Mr Walker, was low, that Mr Walker expected County Hall to carry out a reorganisation of social services which would alleviate his position, and that for these reasons, Mr Walker being dedicated, particular and conscientious about his job, was placed under considerable work pressure and therefore stress in consequence.
In these circumstances was it the Council's duty to take steps to protect Mr Walker against the risk of psychiatric damage?
There has been little judicial authority on the extent to which an employer owes to his employees a duty not to cause them psychiatric damage by the volume or character of the work which the employees are required to perform. It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employer as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care or from the co-extensive implied term in the contract of employment. That said, there can be no doubt that the circumstances in which claims based on such damage are likely to arise will often give rise to extremely difficult evidential problems of foreseeability and causation. This is particularly so in the environment of the professions where the plaintiff may be ambitious and dedicated, determined to succeed in his career in which he knows the work to be demanding, and may have a measure of discretion as to how and when and for how long he works, but where the character or volume of the work given to him eventually drives him to breaking point. Given that the professional work is intrinsically demanding and stressful, at what point is the employer's duty to take protective steps engaged? What assumption is he entitled to make about the employee's resilience, mental toughness and stability of character given that people of clinically normal personality may have a widely differing ability to absorb stress attributable to their work?
Mr Brian Langstaff QC, on behalf of the plaintiff, in the course of his conspicuously well-presented submissions, argues that the increasing pressure of work on Mr Walker and generally on his area, as well as the frustrations and discouragement resulting from the lack of action by his superiors foreseeably exposed him, as a personality of ordinary robustness, to increasing stress and that because excessive stress causes mental illness, a "real risk" of psychiatric injury must at all material times from 1984 have been reasonably foreseeable to the Council. He argues that, by analogy with the relatively small magnitude of risk of injury envisaged as sufficient to give rise to a duty in such cases as Bolton v Stone [1961] AC 850, the foreseeable risk of psychiatric injury to Mr Walker was sufficiently great for the Council to be under a duty to take steps to alleviate his position. Mr Langstaff has drawn attention to the fact that, although in Bolton v Stone the evidence was that the cricket ball had been hit into the highway only six times in over thirty years and that nobody had previously suffered injury, a majority of the House of Lords, while concluding that the risk of injury was properly held by the trial judge to be too small to make it reasonable for the defendants to act to prevent it, nonetheless expressed the view that the case was on its facts near the borderline: see Lord Normond at page 861, Lord Oaksey at page 863 and Lord Reid at page 86 7.
It is reasonably clear from the authorities that once a duty of care has been established the standard of care required for the performance of that duty must be measured against the yardstick of reasonable conduct on the part of a person in the position of that person who owes the duty. The law does not impose upon him the duty of an insurer against all injury or damage caused by him, however unlikely or unexpected and whatever the practical difficulties of guarding against it. It calls for no more than a reasonable response, what is reasonable being measured by the nature of the neighbourhood relationship, the magnitude of the risk of injury which was reasonably foreseeable, the seriousness of the consequence for the person to whom the duty is owed of the risk eventuating and the cost and practicability of preventing the risk. That these are the individual constituents of the yardstick of reasonable conduct is firmly supported by the observations of Lord Thankerton in Glasgow Corporation v Muir [1943] AC 448 at page 454:
"In my opinion, it has long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man....... The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect, and not to give undue weight to the fact that a distressing accident has happened....."
To the same effect is the speech of Lord Porter in Bolton v Stone, supra, at page 858:
"It is not enough that the event should be such as can reasonably be foreseen. The further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough. There must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken."
And in Paris v Stepney Borough Council [1951] AC 367 at page 375 Lord Simonds expressly recognised the potential seriousness of injury as a relevant factor in assessing the standard of care to be expected of the reasonable employer. In Latimer v AEC Ltd [1952] 2 QB 701, Lord Denning observed:
"...in every case of foreseeable risk it is a matter of balancing the risk against the measures necessary to eliminate it."
and in Overseas Tankship (UK) Ltd v The Miller Steamship Co Ltd [1967] AC 617 at page 542, Lord Reid said:
"It does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, eg that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it."
The practicability of remedial measures must clearly take into account the resources and facilities at the disposal of the person or body owing the duty of care: see Lord Reid in British Railways Board v Herrington [1972] AC 877 at page 899, and the purpose of the activity which has given rise to the risk of injury: the risk must be balanced "against the end to be achieved": see Denning LJ in Watt v Hertfordshire CC [1954] 1 WLR 835 at page 838.
The approach to reasonable foreseeability of the risk of work-engendered psychiatric injury is helpfully illustrated by the judgment of Miles CJ in Gillespie v Commonwealth of Australia (1991) ACTR l. That case involved a claim by a former Australian diplomat against the Australian Foreign Affairs and Trade Department in respect of a mental breakdown which he suffered in consequence of stresses created by the living conditions in Caracas, Venezuela, to where he had been posted. The plaintiff contended that such stress and therefore his injury would have been avoided or reduced if the defendants had, before sending him to Caracas, prepared him by a course of training for the severely stressful conditions likely to be encountered. Miles CJ observed at page 15
"In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present proposes is to be considered only in so far as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any "unnecessary" risk was eliminated. In practical terms this means that the plaintiff must show that the defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable, that is a sociably acceptable, level. It may be that this takes the court into an area of value judgment for which the inscrutability of a jury verdict may provide a more appropriate means of expression."
He held that the magnitude of the harm was considerable but that there was not a high degree of probability that harm of that kind would eventuate. At pages 17-18 of his judgment Miles CJ addresses himself first to the question whether the factors involved in moving to such an environment as Caracas would have involved a reasonably foreseeable risk of breakdown to any ordinary person and secondly to the question whether it was foreseeable that the plaintiff was more susceptible to psychological harm than an ordinary member of the diplomatic staff in Caracas. Having held that some risk of psychiatric harm was reasonably foreseeable, but that the plaintiff's particular vulnerability was not foreseeable, he concluded that even if the defendant had taken steps to warn the plaintiff it was not established that he would not have gone to Caracas or, had he done so, avoided his mental breakdown. Consequently the plaintiff's claim failed.
In Petch v Customs and Excise Commissioners [1993] ICR 789 the plaintiff claimed damages for negligence against the defendants for causing him to have a mental breakdown by the volume and stressful character of the work he was required to do. Dillon LJ approached the issue of breach of duty in these words
". . .I take the view, in the light of the general circumstances of this case and the other findings of the judge which I have set out, that, unless senior management in the defendants' department were aware or ought to have been aware that the plaintiff was showing signs of impending breakdown, or were aware or ought to have been aware that his workload carried a real risk that he would have a breakdown, then the defendants were not negligent in failing to avert the breakdown of October 1974."
In the present case, the mental illness and the lasting impairment of his personality which Mr Walker sustained in consequence of the 1987 breakdown was so substantial and damaging that the magnitude of the risk to which he was exposed must be regarded as relatively large.
Moreover, there can, in my judgment, be no doubt on the evidence that by 1985 at the latest, it was reasonably foreseeable to Mr Davison, given the information which I have held that he then had, that by reason of stress of work there was in general some risk that Mr Walker might sustain a mental breakdown of some sort in consequence of his work. That said, how great was the reasonably-foreseeable risk? Was the risk of incidence of illness so slight as to be in all the circumstances negligible or was it a materially substantial risk? There is no evidence that the Council had hitherto encountered mental illness in any other of its area officers or that area officers with heavy work loads, or others in middle management in the Social Services, as distinct from field workers, were particularly vulnerable to stress-induced mental illness. Accordingly the question is whether it ought to have been foreseen that Mr Walker was exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy work load. For if the foreseeable risk were not materially greater than that, there would not, as a matter of reasonable conduct, be any basis upon which the Council's duty to act arose.
It is therefore necessary to ask whether, prior to his first breakdown in 1986, there was anything in Mr Walker's conduct or any information about his work which ought to have alerted the Council, and in particular Mr Davison, to the fact that Mr Walker was reaching breaking point or at least was subject to a materially greater than ordinary risk of mental breakdown.
In September 19 84 Mr Walker wrote to the Director of Social Services asking for one week's additional leave because he had been obliged to put in so much overtime (130 hours) to cover for one of his team leaders who had been away for several months due to illness. He wrote:
"During this period, I have worked very hard to carry out my responsibilities as an Area officer, as well as to do the full work of a Team Leader, and as a result I have been working under very great pressure which has been physically and mentally very tiring. In addition to working at this pace, I have worked about 130 hours extra, and I wish to request one week (37 hours) time off in lieu of this extra time worked.
I accept that in my role as an Area Officer, I should be prepared to work additional time when necessary but I feel that the past four months have been exceptionally heavy. It has been a time when in addition I have suffered badly from hay fever and asthma, and been on continual medication for these conditions. I think that I have had to take 2 x ½ days off ill due to this.
An additional pressure has been the Coal Miners' strike, and I have had to find time to deal with many matters in relation to this.
I wish to make it quite clear that I am an officer committed to my work and my usual work routine as an Area Officer is to begin work at 8 am each day, taking only a quarter to half an hour lunch, and finishing between 5 and 5.30pm.
The point I am making in requesting a week time off in lieu of in excess of 100 hours overtime is that I have worked very hard, I am exhausted, and need a break, without using up too much leave."
In the event Mr Walker was offered two days off on a concessionary basis, but he felt that this was unacceptable and pressed for a formal grant of one week. This was turned down, after much delay, on 14 October 1984. Mr Davison conceded that, having seen this request for leave, he thought that Mr Walker must be really tired, but his instinct was that it was expressed in somewhat exaggerated terms aimed at getting some extra leave.
I have already referred to the meeting in November 1985 between Mr Walker and Mr Pattie, the two area officers, and Mr Davison at which Mr Davison indicated that the work position was to be improved by a general restructuring within about two years. Mr Walker had said that he could not see himself going on beyond that if nothing were done. Mr Davison said in evidence that Mr Walker did not convey to him that his health was likely to be affected in the meantime. It is indeed, difficult to see this assertion by Mr Walker as anything more than an indication that if nothing were done within two years the administrative problems facing him as area manager would make it impossible for him to go on providing effective management. Even given the knowledge that social work is stressful and that excessive stress can lead to mental illness, it could hardly be said that this should have been understood by Mr Davison as a warning of an enhanced risk of impending mental breakdown.
By his letter to Mr Davison of 12 August 1986 on the subject of a replacement for the team leader George Brown, to which I have already referred, Mr Walker wrote
"It is not possible for me personally to do 2 jobs as I have in the past, due to the current pressure on me personally as well as the increased demands of a child care team."
Then later in the letter, he wrote
"I frankly acknowledge to you that I have some bad feelings about previous cover for absent team leaders, when I feel that my efforts could have been better rewarded, and Dennis R knows about that as do you. I have expressed them so that you can be reassured that those feelings have not hindered my professional judgment in making these alternative proposals now. I will be quite satisfied with this proposal if it is accepted, and accept that it will mean a heavier time for me - but I at least feel I will be able to cope with it personally, professionally and managerially."
This letter is an entirely coherent and balanced presentation suggesting particular solutions to a particular staffing problem. I do not consider that even against the background of inadequate support for Mr Walker of which Mr Davison was, as I have held, well aware, there was nothing in this letter to suggest that Mr Walker was approaching breaking point or seriously at risk of mental illness. Mr Davison said in evidence that there was nothing that had given him any clue that Mr Walker was under such stress that he could not mentally cope. If he had appreciated that Mr Walker was close to going under there were things that he could and would have done about it. He saw Mr Walker's problem as essentially a manpower problem rather than a personal problem. I accept that it never occurred to Mr Davison that Mr Walker was in real danger of mental illness.
I must now refer briefly to the expert medical evidence.
Both Professor Sims, called on behalf of Mr Walker, and Dr Wood, called on behalf of the Council, accepted that Mr Walker had been brought down by the impact of the work on his personality. However, their views differed sharply as to why his illness had been triggered. Professor Sims, who had seen and interviewed Mr Walker at length on two occasions in February 1989 and once in January 1993 was firmly of the view that Mr Walker had a personality which was "normal" in the sense that he suffered from no personality abnormality. In particular none of his personality characteristics were more or less than one would find in 95% of the population. Professor Sims found no evidence of underlying insecurity before his first illness or of undue sensitivity to the views or criticisms of others. He had very considerable reserves of character and resilience. What had broken him was (i) the mounting but quite uncontrollable work load; (ii) his feelings of responsibility for the young children under the care of his field teams; (iii) his feelings of responsibility for the over-worked field teams in his area and (iv) a feeling of frustrated helplessness because he found himself in a deteriorating situation which he was powerless to control. Professor Sims detected neither excessive rigidity nor obsessionality in his interviews or in the manner in which Mr Walker gave his evidence. Although Mr Walker had high standards and was much involved in church affairs, he was not a rigid religious devotee.
Dr Wood considered that Mr Walker, although of normal personality, was towards the very rigid end of the personality scale. He was extremely conscientious, but lacked flexibility, the ability to dodge and weave his way round problems in a changing and difficult situation. Having reached 50, he was unable to develop a sufficiently flexible response to the situation. He was somewhat pedantic. His strong feeling that the rural areas were better resourced than his own and his pursuit of that theme with those to whom he was answerable was merely the consequence of his tendency to project on to others the blame for his own inability to adjust to the work. The suggestion that increasing volumes of work was a cause of his illness was to be rejected since his evidence was that he did not usually work at home in the evening or at the weekends. Dr Wood rejected Professor Sims's explanation of Mr Walker's breakdown as a state of frustrated helplessness. In that condition Dr Wood would have expected someone to attempt to work their way out of an impossible situation by working into the weekends. That was not what Mr Walker did.
Mr Langstaff, on behalf of Mr Walker, submits that the fact that Mr Walker was a normal personality and was in the end unable to cope shows that the workload was, in the circumstances, excessive for an ordinary personality and therefore ought more readily to have been perceived to be excessive by Mr Davison.
During the period from November 1985 to his first illness Mr Walker would usually meet Mr Davison at meetings when others would have been present, about once a month and would discuss specific matters by telephone perhaps over every two weeks. They were thus in reasonably close contact. Mr Davison was himself a social worker of roughly similar experience to Mr Walker and if Mr Walker had indicated in any way that he was subject to material risk of mental breakdown it is more probable than not that Mr Davison would have detected it.
I find that Mr Walker was unable to cope with the work and sustained his first breakdown because, although Mr Walker's personality was normal, he was driven to the point of despair by the Council's failure to provide him with what he considered to be sufficient resources to satisfy the urgent needs of the people and particularly the children of his area for social services. The stress created by his determination to provide the required services without unduly overloading his field teams and by his inability to persuade the Council to support him placed him, as Professor Parsloe said, in a position where he was trapped between the two problems. Whether his inability to withstand that stress was attributable to a degree of inflexibility or rigidity in his character which was greater than the norm is, in my judgment, beside the point. On the whole of the evidence I am not persuaded that before the first illness Mr Davison ought to have appreciated that Mr Walker was not only dissatisfied and frustrated because his area could not provide the service, but was at materially greater risk of stress-induced mental illness than an area manager with a busy area would normally be. Mr Ride, who was a very experienced team leader, thought that he would have been able to do Mr Walker's job of area manager, although, for reasons unconnected with the workload, he would not have considered taking it. He was then 58. That certainly does not suggest that the work appeared to him to be unmanageable or likely to endanger his health. He had a closer acquaintance with the problems of the area than Mr Davison.
I therefore consider that before the 1986 illness it was not reasonably foreseeable to the Council that the workload to which Mr Walker was exposed gave rise to a material risk of mental illness.
Was the Plaintiff's Second Illness caused by a Breach of the Defendant's Duty of Care?
In the course of the discussion which Mr Walker had with Mr Davison shortly before he returned to work, at the beginning of March 1987, Mr Walker requested that Blyth Valley area should be split in two with two area managers. This was rejected by Mr Davison. That was in the context of a discussion in relation to Mr Walker's ability to return to his old job after his illness. He had been advised by Dr Stephens not to go back to the same level of responsibility as before. It was in response to this request that Mr Davison offered Mr Robinson's help to assist Mr Walker in the Blyth office. It was Mr Walker's understanding, and I find that Mr Davison gave him to believe, that Mr Robinson's assistance would be available for as long as Mr Walker felt he needed his support. That offer by Mr Davison is only explicable on the basis that Mr Walker told him that he would not be able to cope with the whole Blyth Valley area without help. The area would not be split and so additional help would be needed.
And so it was that on 4 March Mr Walker returned to work in a job in which the pressures which built up in 1986 had already driven him to breaking point and which he had told Mr Davison he could not manage at the outset unless somebody else helped him in the Blyth office.
In those circumstances I have no doubt that it ought to have been foreseen by Mr Davison that if Mr Walker was again exposed to the same workload as he had been handling at the time of his breakdown in October 1986 there was a risk that he would once again succumb to mental illness and that such illness would be likely to end his career as an area manager and perhaps his career in the Social Services. Mr Davison did not ask for or commission any medical report on Mr Walker. He simply had Mr Walker's sick note. He said he assumed that Mr Walker was once again fully fit for work. In my judgment, he should have appreciated that Mr Walker was a man distinctly more vulnerable to psychiatric damage than he had appeared to be in 1986. When Mr Robinson left the Blyth office within a month of Mr Walker's return to work it should have been appreciated by Mr Davison that there was now a significantly greater risk of injury to Mr Walker's health unless the workload could be substantially reduced.
Mr Davison said, which I accept, that he believed that when Mr Walker returned from sick leave he was fit to resume his job. He told Mr Walker to contact County Hall whenever he felt the need and not to get too involved with the child abuse work.
In the event, although, as I have said, the burden of the work in the Blyth Valley area increased between March and July 1987, there was no staff increase and Mr Walker was left to cope. In July he set up a system of prioritisation of work in order to take some of the pressure off his field workers and team leaders. In the event the area was able to keep abreast of child abuse cases, but the backlog in other important areas of the work had to be allowed to build up. Mr Davison said he did not know why Mr Walker did not adopt such a system back in 1985. Indeed he went so far as to say that it would be astonishing if an area were properly managed without a system of priorities. His evidence on priorities was not entirely convincing. At the same time as he was saying that a system ought to have been introduced, he also said that he would expect to be informed if such a scheme was proposed for there might be political implications if things went wrong. The Department, according to Mr Davison, let it be known that if that happened it would stand behind the area officers. I infer that the Department did nothing to encourage prioritisation by area officers as a systematic response to increasing workload because it was seen as a political hazard. It gave no lead in this direction, nor in any other way made recommendations as to how the deluge of work should be distributed.
In my judgment, once Mr Robinson was not fully available to assist Mr Walker, it was quite likely, if not inevitable, that he would again break down. I find that the failure to relieve Mr Robinson of sufficient of his other duties to enable him to provide continuous and effective back-up for Mr Walker was fatal to Mr Walker's ability to survive.
The evidence on the availability of Mr Robinson was very limited. He certainly had functions at County Hall as Principal Field Work Officer. There is, however, no evidence as to what those functions were or that those functions could not be redistributed to other staff or simply subjected to prioritisation at County Hall and therefore not wholly performed. He had certainly undertaken a substantial amount of work at Blyth Valley during Mr Walker's absence and his failure to continue to make himself fully available to Mr Walker can, I infer, only have been either because he was instructed by Mr Davison or others at County Hall to concentrate on his own functions to the exclusion of giving assistance at Blyth Valley or, at its lowest, was not instructed to give priority to Blyth Valley work. It is clear that the approach adopted at County Hall was that if Mr Walker was physically present there was no need for anybody to be continuously available or available for a substantial part of the time to assist him.
In the result, it is established that by April 1987 Mr Walker was exposed in his job to a reasonably foreseeable risk to his mental health which materially exceeded the risk to be anticipated in the ordinary course of an area officer's job. Was it in those circumstances reasonable for the Council to take action to alleviate or remove that risk? In my view, the only course which would have had a reasonable probability of preventing another mental breakdown was the provision of continuous or at least substantial back-up for Mr Walker in the Blyth office from Mr Robinson or somebody of equal experience who could in effect have acted as Mr Walker's deputy. However, in deciding what was reasonable conduct I must have regard to the acute staffing problems which at the relevant time confronted the Council.
By April 1987 the Social Services Department's 1987-1988 budget had been approved by the Social Services Committee and by the Council. It involved the creation of two additional social service posts for level III social workers and that two post hitherto graded at level II were to be up-graded to level III. The new posts were to specialize on work with abused children. These were obviously to be senior social workers as distinct from area officers, assistant area officers or team leaders. Apart from the budgetary provision for these posts there was no provision in the Department's budget for 1987-88 for paying for additional staff. In the event, the two additional social workers were only to be taken on with effect from 1 July 1987. It follows that if additional assistance was to be provided to Mr Walker in March 1987 it would have to be from the existing establishment. The evidence before me established beyond doubt that the Department as a whole was in general understaffed, particularly having regard to the demands of the child care service. In the period from 1985 the Department's expenditure had been very tightly controlled and the 1986-87 Council budget had been a "standstill budget" . Accordingly I infer that in March 1987 there was no available surplus staff capacity to assist Mr Walker. It was therefore only by postponing or rejecting by prioritisation other work demands that anybody of sufficient ability and experience would be able to assist Mr Walker. Mr Langstaff argued that staff ought to have been moved from the Alnwick/Berwick area which was rural and far less beset with child care problems than Blyth Valley. He relied in support of this argument on the fact that after Mr Walker had suffered his second illness breakdown, one team leader - Mr Anderson - had been transferred to Blyth Valley as acting area officer, that, as Mr Davison conceded, this transfer did not involve additional resources or budgetary provision and that, accordingly, it did have to be approved by the Social Services Committee. It was only a temporary expedient. Mr Davison, however, stated that it was not appropriate to move anyone from the rural area on a permanent basis as an assistant to Mr Walker. That would, as he put it, have "considerable resource implications". He may have had in mind in this context that the existing Blyth office would not have been large enough to accommodate an assistant for he had already said that it was not large enough to accommodate another area officer. Secondly, he said that permanently to remove Mr Anderson from Alnwick would destabilize that area in order to take the uncertain opportunity of stabilizing Blyth Valley. That would have had to be decided by the Committee. It is not unlikely that in that event the Committee would have had to deal with questions of competitive demands for social work from different areas of the Council's territory.
I therefore conclude that the Council could only have provided Mr Walker with substantial assistance in March 1987 at the expense of some disruption of other social work. It is impossible on the evidence which I have heard to form any clear view on the extent to which work in the Alnwick area would have been disrupted if Mr Anderson or some other team leader had been moved down to Blyth Valley or on the extent to which work at County Hall would have been disrupted if Mr Robinson had been seconded to Blyth Valley on a sufficiently available basis, but I infer that the extent of disruption would have been such as to preclude the Council from providing at least some services which it would otherwise have been able to provide.
In deciding whether the Council was acting reasonably in failing to provide additional staffing to Mr Walker it is clearly right to take into account and to attach some weight to the fact and extent of that disruption. However, Mr Simon Hawkesworth QC, on behalf of the Council, contends that because the extent to which the Council provided social services to the public in particular areas was a discretionary or policy decision in respect of the exercise of statutory powers, as distinct from an operational one, if the secondment of additional staff to assist Mr Walker involved withdrawal of services, the Council's policy decision not to disrupt its services merely to enable it to support Mr Walker could not amount to a breach of duty of care to Mr Walker. Mr Hawkesworth relies in particular on the developing distinction between policy decisions and operational decisions enunciated by Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728 at pages 753 to 758, and further explored by the Court of Appeal in Lavis v Kent County Council (1992) 1 PIQR 351. In other words, Mr Hawkesworth contends, the court is shut out from characterizing as unreasonable conduct on the part of a public body which is the consequence of a decision by that body in a policy-making area to carry out its statutory powers in a particular way or to a particular extent.
It is to be observed that both Anns and Lavis v Kent County Council were cases which involved claims by plaintiffs with whom the defendant local authority had a casual neighbourhood relationship and which were based on the allegation that the defendant had carried out or failed to carry out a statutory power which existed within the context of legislation directed to the protection of the public. In Anns it was the building occupiers and in Lavis the road user. In neither case was there a contractual relation overlaying the duty of care in tort, as there is in this case. Further, the issue addressed by Lord Wilberforce when he came to consider the distinction between policy and operational decisions in Anns was expressed in these words
"The problem which this type of action creates, is to define the circumstances in which the law should impose, over and above, or perhaps alongside, these public law powers and duties, a duty in private law towards individuals such that they may sue for damages in a civil court. It is in this context that the distinction sought to be drawn between duties and mere powers has to be examined."
Lord Wilberforce was then exploring the territory which lies between the public law powers and duties of a statutory body and the private law duties which might be owed by such a body to a member of the public whose relationship with that body was contemplated by the statutory sources of the public law powers and duties.
Neither counsel was able to refer me to any decided case in which it had been suggested that in the context of a contract of employment between a statutory body and an employee the body could rely on considerations of policy to justify a decision which caused damage or injury to the employee to the effect that the court was, as a matter of law, precluded from evaluating the reasonableness of the statutory body's conduct.
In my judgment the policy decision/operational decision dichotomy has no more part to play in the context of the duty of care to an employee with whom a statutory body has a contract of employment than it would have in the context of any other contract made by such a body. Just as it would be no defence to a claim for non-performance of a contract for the sale of goods that the local authority had resolved as a matter of policy that the use of its scarce resources for the performance of the contract was inexpedient, so it would be no defence to a claim for breach of the implied term in a contract of employment that the employer would exercise reasonable care for the safety of his employee that its failure to do so was the result of a policy decision on the exercise of its statutory powers. Since the scope of the duty of care owed to an employee to take reasonable steps to provide a safe system of work is co-extensive with the scope of the implied term as to the employee's safety in the contract of employment, see for example, Johnstone v Bloomsbury Health Authority [1992] QB 333, to introduce a ring fence round policy decisions giving rise to unsafe systems of work for the purposes of claims in tort which was not available to the defendant statutory body in defences to claims in contract would be to implant into employment law a disparity which, in my judgment, would be wholly wrong in principle. Whereas the mutual intention to be imputed to the parties to a contract of employment with a public body could be expected to qualify the employer's duty of safety by requiring the employer to do no more than take reasonable steps to procure the employee's safety at work, it is inconceivable that such mutual intention would require the employer to take only such steps for the employee's safety as political expediency from time to time permitted if the exercise of statutory powers were involved. In the absence of authority to the contrary or of compelling common law principle, there can be no sustainable basis for subjecting the duty of care in tort to such a qualification.
That said, the duty of an employer public body, whether in contract or tort, to provide a safe system of work is, as I have said, a duty only to do what is reasonable, and in many cases it may be necessary to take into account decisions which are within the policy-making area and the reasons for those decisions in order to test whether the body's conduct has been reasonable. In that exercise there can be no basis for treating the public body differently in principle from any other commercial employer, although there would have to be taken into account considerations such as budgetary constraints and perhaps lack of flexibility of decision-taking which might not arise with a commercial employer.
Having regard to the reasonably foreseeable size of the risk of repetition of Mr Walker's illness if his duties were not alleviated by effective additional assistance and to the reasonably foreseeable gravity of the mental breakdown which might result if nothing were done, I have come to the conclusion that the standard of care to be expected of a reasonable local authority required that in March 1987 such additional assistance should be provided if not on a permanent basis, at least until restructuring of the Social Services had been effected and the workload on Mr Walker thereby permanently reduced. That measure of additional assistance ought to have been provided notwithstanding that it could be expected to have some disruptive effect on the Council's provision of services to the public. When Mr Walker returned from his first illness the Council had to decide whether it was prepared to go on employing him in spite of the fact that he had made it sufficiently clear that he must have effective additional help if he was to continue at Blyth Valley. It chose to continue to employ him, but provided no effective help. In so doing it was, in my judgment, acting unreasonably and therefore in breach of its duty of care.
I understand it to be accepted that if there was breach of duty damage was caused by that breach. However, in view of the fact that I have decided this case on the second breakdown alone, it is right to add that I am satisfied on the evidence that had the further assistance been provided to Mr Walker, his second breakdown would probably not have occurred.
In the event, there will be judgment for the plaintiff on liability with damages yet to be assessed.
