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Part-time Lecturer in Law
Newcastle Law School,
University of Newcastle
< [email protected]>

Copyright © Keith Patten, 2004
First published in Web Journal of Current Legal Issues.

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The recent decision in Barber v Somerset County Council [2004] UKHL 13; [2004] 1 WLR 1089 was the first opportunity the House of Lords had to consider the law of compensation for psychiatric injury caused by occupational stress. The area is a battleground between those seeking an expansionist approach to tort-based compensation and those seeking to resist such developments. This comment considers the outcome of the case, argues that the House of Lords has made no fundamental changes in the law as it already applied but concludes that the dicta in the speech of Lord Walker on behalf of the majority does represent a subtle but significant change of emphasis in a pro claimant direction.

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• Introduction
• The facts
• The decisions below
• The decision in the House of Lords
• The dissent
• Comment

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Partisans of either a pro claimant or a pro defendant hue may have felt some disappointment with the decision of the House of Lords in Barber v Somerset County Council [2004] UKHL 13. The opportunity to have a root and branch review of the law relating to personal injury claims for work related stress was largely missed because of the limited way in which the appeal was argued and the consequentially limited judgment of their lordships. The decision is not, however, without its importance. Despite its essential preservation of the status quo the speech of Lord Walker, on behalf of the majority, puts an important practical gloss on the Court of Appeal judgment in Hatton v Sutherland [2002] EWCA Civ 76, albeit that his comments are largely obiter. The dissenting speech of Lord Scott, by contrast, stakes out the battleground of policy which these cases demonstrate. The issues go to the heart of personal injury compensation and its purposes.

Mr Barber was an overworked teacher. At first instance the judge found that he worked far beyond his contracted hours. As such, he was far from unusual. He began to feel the strain and consulted his doctor on a couple of occasions. In the middle of the summer term in 1996 he reached the stage where he needed to consult his doctor again and on this occasion was given a sick note for three weeks for stress and depression. He returned to the same workload. Once back at school he saw, separately, the head and her two deputies and at those meetings indicated that he was not coping well with his workload. The response of two of these senior managers was unsympathetic. The third did offer a sympathetic ear but no practical solutions, other than to suggest to the claimant that he should prioritise his work. The summer holidays then came along and the claimant had the customary break. The start of the autumn term brought a renewal of the same heavy workload and pressures. The claimant said nothing more to his managers about how he was coping. After only a few weeks of that term the claimant came off on the sick again with depression and this time never returned.

The decisions below

The claimant sued his employer for personal injuries alleging that they had breached their duty of care to him in exposing him to excessive levels of stress, and that that breach of duty had caused his depressive illness. At first instance His Honour Judge Roach found in favour of the claimant. The defendants appealed and the appeal was heard together with three others, collectively known as Hatton v Sutherland [2002] EWCA Civ 76. The Court of Appeal took the opportunity to review the law of occupational stress generally. It allowed the defendant’s appeal and Hale LJ, giving the judgment of the court, set out in detail her views of the guiding principles in such cases.

The first of these principles is that in relation to employer’s liability claims, where claimants are effectively in the position of ‘primary victims’, there are no special control mechanisms in operation. The ordinary rules of duty, breach and causation apply (para 22). The question is, therefore, essentially one of foreseeability and, as Hale LJ put it, the “threshold question is whether this kind of harm to this particular employee was reasonably foreseeable” ( para 43). It goes without saying that a claimant must also establish causation, and in particular that the illness must be proved to have been caused by, or materially contributed to by, the breach of duty. This means that it must be the failure of the employer to take those steps which a reasonable employer should have taken in the light of the risk of injury it could foresee which must have caused the injury, not merely the stress at work (para 35).

In summary, Hale LJ set out sixteen propositions to assist courts to apply these tests in future cases. It is the meaning of these guidelines which have been the battleground in succeeding claims as disputes arise over nuance and emphasis in particular factual situations. The tenor of the guidelines is that an employer can, in general, assume that his employees are capable of doing the work they are employed to do unless they have clear indications to the contrary, and can take what an employee says to them about his ability to cope at face value (para 43). In general an employer does not have to make searching inquiries of the claimant or his doctors and a duty to act will arise only if “the indications of impending harm to health arising from stress at work [are] plain enough for any reasonable employer to realise that he should do something about it” (para 43). The overall emphasis of the Court of Appeal’s judgment is to place the burden squarely on the shoulders of the employee to establish, by word or deed, the requisite state of foreseeability in the mind of the employer.

The House of Lords allowed the claimant’s appeal, overturning the Court of Appeal judgment. The actual decision, however, rested on narrow procedural grounds. The majority (Lord Scott dissenting) felt that the judge had had before him sufficient evidence to justify his findings of breach of duty even on the basis of the Court of Appeal’s guidelines, and that the Court of Appeal ought not to have interfered with his decision. The interest, however, lies not in that finding but in the dicta in the speeches of those of their lordships who gave a substantive view. These dicta engaged with the more significant issue of how the courts should deal with such cases and in particular upon the interpretation of the Court of Appeal guidelines.

The claimant did not seek to overturn the basic approach of the Court of Appeal to the law and Lord Walker affirmed the Court of Appeal’s analysis as “a valuable contribution to the development of the law”.⁽¹⁾ The dicta in his speech were, therefore, largely directed towards what an employer needed to know before foreseeability was established. He regarded breach of duty here as “fairly close to the borderline”⁽²⁾ but considered it to be made out. His view is that employers have a more proactive obligation than was apparent from the Court of Appeal. Faced with an experienced and conscientious teacher who had been off work for three weeks in the middle of term with depression the employers should have made inquiries to see what could be done to help him.⁽³⁾ Such steps might have required no more than sympathetic support and some small reduction in his duties. They might, however, have required more drastic steps such as the employment of a supply teacher, despite the resource implications involved. Supply teachers cost money, but they cost less than the permanent loss of a valued and experienced member of staff. Merely telling the employee to prioritise his existing workload was not sufficient.⁽⁴⁾ In failing to take any of these proper steps the defendants were in breach of duty. That breach began following the claimant’s meetings with the headmistress and her two deputies after his return to work from his initial three week absence. It continued until the employers took such steps as were reasonable and appropriate in the circumstances, which in the context of this claim meant that the breach was ongoing.

Although only Lord Scott dissented as to result, Lord Rodger, who concurred in holding that the Court of Appeal should not have interfered with the judge’s decision, can be regarded as dissenting also in relation to the dicta. Lord Scott strongly supported the tenor of Hale LJ’s approach. He took the view that stress and pressure of work were endemic to teachers and indeed many other professionals. An employer could not be expected to act unless the indications that a particular employee was not coping were clear.⁽⁵⁾ The claimant had made no further complaint about his problems after his meetings with the head and her deputies and to impose on the school an obligation to make inquiries was setting them too high a standard of care.⁽⁶⁾ Lord Rodger similarly felt that the approach of the majority would burden employers with an excessive duty. He was concerned particularly with the interrelation of tortious liability with the duties and rights under the contract of employment.

The first question which needs to be asked is whether Barber has done anything at all to alter the statements of the law as set out by Hale LJ in Hatton. The opposing camps were quick to stake out their positions in the propaganda war. Briefing notes issued by the two sets of chambers representing claimant and defendant have shown markedly different interpretations of the result, with the claimant side regarding the case as putting “a significant gloss” on Hatton⁽⁷⁾ while the defendant’s representatives suggest it offers claimants only “limited comfort”⁽⁸⁾. The truth may be that both are correct.

It remains to be seen how far conflicting dicta will be picked up and used by judges in future cases. But the approach of Lord Walker does, arguably, point the courts in the direction of doing what Hale LJ claimed to be doing, rather than what she actually did. This is to apply ordinary common law rules of negligence to claims for occupational stress. This idea was influential in the speech of Lord Walker. He quoted with approval the opinion of Swanwick J in Stokes v Guest, Keen & Nettlefield (Bolts & Nuts) Limited [1968] 1 WLR 1776 at 1783 that the test is “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...” It is the concept of “positive” thought which seems to divide the respective interest groups. Hale LJ emphasises employer reactivity. Lord Walker, by contrast, regards employer’s duties as being much more proactive. In Lord Walker’s view an employer does not discharge his duties merely by sitting back and waiting to be complained to. He has some positive duty to consider the health and safety of his workforce. Such an approach does indeed accord more clearly with the general law of negligence in this area. If an employer permits a hazard to exist in his factory which causes injury then the happening of previous similar accidents or the making of prior complaints are important evidential weapons in establishing liability, but they have never been necessary requirements of breach of duty. An employer is liable if he knows or should reasonably have known of the risk and fails to take reasonable steps to reduce or remove it. If normal principles of liability are to apply to stress cases then an employer should equally be liable if he knows or should reasonably know that an employee is at risk of psychiatric injury and once he has this knowledge his duty to act is triggered. The detailed application will always be heavily fact related.

With respect to Lord Scott the fact that an employer may have an entire workforce under stress but largely managing is of little relevance. The duty is a personal one to the individual employee and once the employer is aware that that individual has a problem he should do something to investigate and, if needs be, act.

Concerns that this will lead to intolerable burdens on employers are misplaced. In the first instance, Lord Walker’s statement that the case fell “fairly close to the borderline” of liability⁽⁹⁾ is a clear indication that the employer will still require something concrete to establish foreseeability. Here, that was not merely an initial absence certified as being due to depression but three separate meetings following the return to work confirming that the problem was both work related and ongoing. Fears that employers will be put into the position of having to guess the mental states of their employees are unfounded. Such a proactive approach to liability also accords with modern views of health and safety provisions in general. A proactive approach already has statutory embodiment in the 1992 regulations⁽¹⁰⁾ which emphasise the importance of employers’ duties to carry out risk assessments. The approach of the 1992 Regulations has altered the health and safety environment in a way more radical than is often recognised. Risk assessment underpins the entire approach. This requires employers to go looking for hazards rather than merely to respond when they are brought to their attention. The whole emphasis of health and safety law has moved in the direction of being goal based, setting out standards to be achieved rather than prescriptive as to the method of achieving them. The goal is the preservation of the physical (and psychological) integrity of the workforce, and the approach is systemic. Such duties require employers to manage the health and safety environment, and to do so actively. Identifying dangers before they cause injury is key. At the time this case arose a breach of the duty to risk assess generally under the Management of Health and Safety at Work Regulations 1992 was specifically stated as not giving rise to civil liability.⁽¹¹⁾ These Regulations have been amended as of 27^th October 2003 by the Management of Health and Safety at Work (Amendment) Regulations 2003, regulation 6 so that a failure to risk assess can now give rise to a civil action in tort for breach of statutory duty. Lord Rodger alluded to this change and its possible impact on future cases without developing the idea.⁽¹²⁾ The approach of Lord Walker and the majority, however, is no more than a judicial recognition of the health and safety zeitgeist.

This is a development with which Lords Scott and Rodgers appear uncomfortable. Both accept the law as set out by Hale LJ in the Court of Appeal but it is hard to avoid the conclusion that they would prefer to do away with claims for occupational stress altogether. Lord Scott is quite dismissive of such claimants. Stress at work is common for certain types of employees and “they are all adults. They choose their profession”.⁽¹³⁾ But such an approach would be an answer to liability in all cases where claimants work in stressful and pressurised jobs. It sounds little different to the kinds of attitude which formerly prevailed in relation to coal miners whose lungs were damaged by coal dust or shipyard workers whose hearing was ruined by noise. It is an inherent risk of the job and if they do not like it they can go and get another job. Such ideas not merely fail to recognise the social and economic realities of the workplace but also rest on a false assumption that it is the employee who is necessarily in the best position to know that he is being damaged. Such ideas have fortunately largely gone in relation to physical injury and it is to be hoped that they will not long linger in relation to psychiatric injury. Claims to invoke adult autonomy against the nanny state will often sound a superficial appeal but run the risk of excluding individuals who have suffered negligently inflicted injury from the compensation process.

Lord Scott does attempt to justify applying different standards to physical risks than to psychiatric ones. He does this by stressing the difficulties employers have in predicting who among their workforce will be able to cope with the stresses of the job, and who will not. Threats to physical safety impact on the entire workforce equally whereas threats to psychiatric safety do not.⁽¹⁴⁾ This is true in so far as it goes, but it ignores the personal nature of the duty an employer has to each of his individual employees. Employers are not here being asked to predict who will suffer harm. They are being asked to respond positively to indications that a particular individual might suffer harm. That Lord Scott is uncomfortable with the whole idea of claims for compensation for occupational stress is further illustrated when he says “in under funded institutions providing vital social services there is often very little that the employers can do about stress problems”.⁽¹⁵⁾ This seems like a counsel of despair but also seeks to mark out yet another apparent distinction between physical and psychiatric risks which has no place in the context of employers’ liability claims.

Predicting future trends is a generally thankless task. The emphasis of liability may have been subtly nudged in a more pro claimant direction but the test as expounded by Lord Walker is no more clearly predictive that what had gone before. Indeed, Lord Walker, himself, undertook a detailed factual analysis before giving his views, suggesting that each case will still need close individual scrutiny. While an employee off work with a certified depressive illness may well put an employer on notice of future problems, it is unclear how far this will stretch. What of the employee who is off work with another condition, such as migraine, which might well be stress induced, but equally might well not? Without more it is suggested that foreseeability will not be made out. The same could be asked of the employee who is behaving ‘oddly’ or who turns up to work looking dishevelled, but the context in which such events occur will be crucial. This may suggest a significantly enlarged pastoral role for employers. But Barber is certainly not a floodgates decision. It was suggested above that the reactions of both sides to the result might be true. Certainly there has been no fundamental alteration in the basic law. The claimant did not even seek to persuade the House of Lords to make such a change. That was undoubtedly a correct approach because an outcome privileging psychiatric harm over physical was never likely and is hard to justify. But a result which requires employers to proactively respond to known psychiatric health problems of their employees is, indeed, a significant gloss on the Hatton guidelines. As such it is to be welcomed. In the context of employers’ liability claims extra control mechanisms are difficult to justify and Hale LJ’s foreseeability hurdle had all the appearances of a hidden control mechanism, even if it was expressed as not being one. Such claims will remain legally and evidentially difficult. The vast majority of those who suffer psychiatric injury as a consequence of occupational stress will remain without a remedy. But if employers are encouraged to take the psychiatric health of their workforce more seriously, a service will have been done.

⁽¹⁾ [2004] UKHL 13 at para 63.
⁽²⁾ at para 67.
⁽³⁾ at para 67.
⁽⁴⁾ at para 68.
⁽⁵⁾ at para 14.
⁽⁶⁾ at para 13.
⁽⁷⁾ Cloisters, 1 Pump Court, Temple, London - press release - 1st April 2004 - http://www.cloisters.com.
⁽⁸⁾ 2 Temple Gardens, London - press release - 1st April 2004 - http://www.2templegardens.co.uk/publications/barbercasenote.doc.
⁽⁹⁾ at para 67.
⁽¹⁰⁾ A collection of 6 sets of Regulations based on European law which replace much of previous Factories Act obligations with more general employers’ obligations – colloquially referred to as ‘the six pack’.
⁽¹¹⁾ Regulation 22.
⁽¹²⁾ at para 30.
⁽¹³⁾ at para 14.
⁽¹⁴⁾ at para 6.
⁽¹⁵⁾ at para 14.