Pratley v Surrey County Council

The appellant, Miss Maureen Pratley, appeals from a judgment of Buckley J given 31^st July 2002, dismissing her claim for injury to her health alleged to have been caused by the Surrey County Council’s negligence. Miss Pratley was employed by the Council as a care manager from 1994. She ceased to work on and from 25^th September 1996, although she was not finally dismissed (with three months pay in lieu of notice) until 21^st May 1998.

Miss Pratley’s claim was pleaded on a number of bases, but its kernel at trial, as identified by the judge, was that stress of overwork had been both apparent and complained of, and that in March 1996 and again in August 1996 Miss Pratley had, in effect, warned of the injury to her health if nothing was done to lighten her burden. In particular, Mrs Elrick, who was Miss Pratley’s immediate superior and the locality care manager, had promised to introduce a system of “stacking” of cases (that is a system whereby new cases would not be allocated to individual case managers unless and until their existing work-load had space). This promise was said to have been made just before Miss Pratley took a three week holiday from 30^th August 1996. But, when she returned to work on 23^rd September 1996, she found that no step had been taken in that direction.

The judge accepted that, as a matter of causation, returning from holiday to find that “stacking” had not been introduced was a material cause of the depressive illness to which Miss Pratley in fact succumbed on and after 25^th September 1996, whether or not it was the major one. The basis for this conclusion was psychiatric evidence called by both parties, that a “life event” could be the trigger for a depressive episode, that such an event could consist in loss of a cherished idea, entrapment or humiliation, and that, “if Miss Pratley had seen ‘stacking’ as a solution to overwork or pressure, the fact that it had not been introduced on her return from holiday could have acted as the loss of a cherished idea and led to a feeling of entrapment”.

Miss Pratley qualified as a nurse in 1974 and worked from 1972-76 with the RAF and from 1976 at Leatherhead Cottage Hospital. She entered the Council’s employment in 1986, first as an assistant team manager at a residential home for the elderly and from 1992 as human resources director at another residential home. The post of care manager which she applied for and obtained in 1994 involved a salary cut of £2,000, but was the job she had always wanted. It involved a basic 36 hour week, with a requirement to record overtime and a right to take compensating time in lieu.

It was a post which involved considerable pressure because of the demands on the services of care managers and a lack of funding. Mrs Elrick knew that such pressures existed and could lead to stress and that undue pressure or stress created a risk of injury to health. The judge found that Miss Pratley regarded herself as robust and as someone who could cope with working under pressure and would not want the Council through Mrs Elrick to think that she was not up to her job or could not cope. Unknown to and unsuspected by Mrs Elrick, Miss Pratley deliberately withheld from Mrs Elrick information about the actual pressures and their effect on her. The judge identified two particular respects in which this occurred. First, Miss Pratley worked extraordinary amounts of overtime, which she did not record and in respect of which she did not claim time in lieu. Thus, in the months of May, June and July 1996 she only recorded 7, 5 and 8 hours overtime respectively. But in her evidence she said that by this time she was by mid-1996 “working at least 4 hours overtime each evening, sometimes more, about 6 hours on a Saturday, sometimes in the office and 6 hours on a Sunday at home”. All that she said in her witness statement was that she told Mrs Elrick that she was working more than an additional 4 hours a week. But the judge found that she gave no clue to the actual hours that she said in evidence that she was working, and that Mrs Elrick had no idea that she was working anything like those hours. It has not been suggested that Mrs Elrick should have had any such idea. Secondly, when Miss Pratley had 2 weeks sick leave in March 1996, for reasons recorded in her doctor’s certificate as “neuralgia”, her doctor in fact suggested that her headaches were probably due to stress, but she had asked him not to record that on the certificate. She was, the judge found, concerned to hide from Mrs Elrick both the extent of the overtime she found it necessary to put in and also that her neuralgia could be related to stress at work.

Nevertheless, Miss Pratley said that she had mentioned to Mrs Elrick in a brief corridor conversation that she was suffering from stress, to which Mrs Elrick had replied that she was “not surprised”. Mrs Elrick could recall no such conversation, but accepted that, if Miss Pratley had mentioned stress, she herself may have made some such reply. She insisted and the judge accepted that such an exchange, if it took place, was a light hearted one and not one calculated to alert Mrs Elrick to a serious problem. It was “not one made either in context or manner which alerted Mrs Elrick to a problem or which would have alerted any reasonable employer”.

In an appraisal signed off by Mrs Elrick in June 1996, though expressed to relate to the period ended 5^th March 1996, Mrs Elrick summarised Miss Pratley’s position thus: “A good year’s work. Maureen has very high standards and always aspires to achieve them.” The appraisal recorded that Miss Pratley found “all aspects of job interesting” and, under “problems or difficulties” made only one potentially relevant comment: “… Volume of cases is becoming too great again – mostly complext issues avoiding complaints [sic]”.

In these circumstances, the judge summarised the position up to August 1996 as being that “Mrs Elrick knew that the workload was burdensome and at times stressful in a general sense, but there was nothing to alert her, or any reasonable employee, to a risk to Miss Pratley’s health”. During this period Miss Pratley never sought to avail herself of the occupational health service or counselling services that were available to the Council’s employees.

The focus thus turned to events in August and September 1996. On 21^st August there was a routine supervision meeting between Miss Pratley and Mrs Elrick. In accordance with standard practice, Mrs Elrick made a note, a copy of which was made available to Miss Pratley. After two presently irrelevant paragraphs, the rest of the note reads:

“Elderly cases/PH – 40 to be transferred to SJ [Sally Jagger, another case manager] and MP.

MP feels that she is “going under”.

BD has c. 60 cases.”

This is not the case – there are only two Eld PD cases to be reallocated

MP’s case load 111

SJ c. 110

BD 60

281

i)

Need to slow down the incoming new work

ii Day to Day work – i.e. dealing with crises on cases is manageable

SE → Memo to Carol Foster to explain pressures and get snr. Managers to recognise the problems.

Agreed to write to Carol to inform her of decision to stack new cases – because of pressure of incoming work.

MP fears repercussions on her personal health as a result of pressures. Agreed this is recorded, should MP need to seek further advice/ and for future protection of her personal position.

Date for next meeting 16^th October 11.30 a.m.”

The phrase added in “This is not the case – there are only 2 Eld PD cases to be reallocated” is joined by a line drawn to the underlined word above it “transferred”.

The evidence suggests, as one might expect, that part at least of this note was made during the meeting. The additional phrase, correcting Miss Pratley’s fear that 40 additional cases were to be transferred to Sally Jagger and her, was made as a result of enquiries, quite likely by each party. The phrase was, according to the judge, “added immediately after the meeting (or possibly at a later stage during the meeting)”. Since the addition is made in a gap in the main text, it would seem that any enquires were made during the meeting, or the latter part of the text must have been written after the meeting. Both parties’ witness statements (bundle pages 180 and 200-1) lend some support to the judge’s view that it was added after the meeting. Mrs Elrick’s statement also recounts that she checked the existing number of cases allocated to the case managers, recorded on the note in the case of Miss Pratley as 111. Miss Pratley’s pleaded case referred to 150 cases and in evidence at trial she suggested for the first time that her case load had risen to 168 in late August 1996. The judge rejected both suggestions and found that 111 was the correct figure.

More importantly than all of this, however, the judge, having heard the evidence, expressly accepted “Mrs Elrick’s evidence and her overall account of the 21^st August meeting” (judgment, paragraph 22). Mrs Elrick’s account, as summarised by the judge, was that

“the feared transfer of 40 extra cases seemed to be Miss Pratley’s primary concern. That she did not think that she could cope with that especially when she was just going on holiday and it was that aspect of the matter that provoked the discussion about Miss Pratley’s health and the reference in the note to it.”

That passage follows paragraph 45 of Mrs Elrick’s witness statement, recording that she thought that it was Miss Pratley’s belief (subsequently corrected) that she was about to receive 40 new cases that provoked the further discussion about Miss Pratley’s health recorded in the last paragraph of the note. It is true that the note as copied to Miss Pratley continues to reflect the original fears communicated at the meeting, but the judge was entitled and bound to have in mind that their primary basis had been removed by the enquiries made.

The note is only a partial record of what was said, since it was common ground that there was also discussion about a possible reference to the Occupational Health Officer, to which the next passage in the judgment refers:

“Mrs Elrick’s recollection …. is that Miss Pratley told her she was concerned that her health might suffer in the future but that she did not say that her health was already suffering or that she had seen her general practitioner. Overall she did not have the impression that Miss Pratley was telling her that she was then seriously under stress or unwell. She agrees that she may well have been her suggestion that they should wait until Miss Pratley’s return from holiday to decide whether she wished to be referred to the Occupational Health Officer. She is sure however that she did not “persuade” Miss Pratley to postpone her requests. Overall Mrs Elrick had had not previous indication that Miss Pratley was suffering from stress, there was no evidence at all of her work deteriorating, and her reason for not immediately writing to Carol Foster was that her overall feeling was that the situation could wait until after Miss Pratley’s holidays. Mrs Elrick felt that she was dealing with a very professional and calm person and Miss Pratley’s fear was for the future. …. However, she very fairly agreed that it would not have been unreasonable for Miss Pratley to expect “stacking” to be implemented on her return. She had no idea that Miss Pratley would react as she did in the two days she was back at work after her three week holiday and before signing off sick …..”

The judge did not accept Miss Pratley’s account of the meeting, or therefore reflect in his findings her suggestion that she had only been persuaded not to go the Occupational Health Officer immediately because Mrs Elrick indicated or promised that stacking would be implemented immediately. In the light of his findings about the evidence, the judge reached conclusions as follows:

“28.

….. Miss Pratley did mention a health concern at the August meeting, but I readily accept Mrs Elrick’s interpretation and recollection that it was a concern for the future, if the work load was not reorganised in some way. Mis Pratley had not seen fit at that time to go to her own G.P., the Occupational Health Department or the counselling services available. That evidences her own view of her health at the time and is some evidence of the impression she would have given to Mrs Elrick. Her work was not suffering. To find that Mrs Elrick should, in those circumstances, have realised that action had to be taken by the day Miss Pratley returned to work after a three week holiday, would be unreal. It was in my judgment, entirely reasonable for Mrs Elrick to see how things were and how Miss Pratley felt on their joint return to work before taking specific action. The first indication of a concern for Miss Pratley’s health was at the 21^st August meeting. Mrs Elrick had no medical evidence at all. Simply Miss Pratley’s expressed fear for the future. Miss Pratley herself thought that her 3 weeks holidays would sort her out.

29.

Mrs. Elrick was described in one of the witness statements as a caring individual. Having seen and heard her, I accept that description. I found her to be intelligent, impressive and frank. Had she found a continuing problem on her return, she would have dealt with it. To find she should have perceived a risk of Miss Pratley reacting as she did and breaking down almost immediately on her return, would be grossly unfair. The truth of the matter clearly is that Miss Pratley was unwell to a greater extent in August, than she herself realised. There was nothing at the time to alert Mrs. Elrick to that. I am very sympathetic to Miss Pratley, who has an excellent work record and who is herself a thoroughly decent and caring lady who has made a real contribution to society through her work. But for the reasons given I cannot hold the Council to have been in breach of duty and the claim must be dismissed.”

Mr Langstaff QC for Miss Pratley put her case first and foremost on the basis that the judge erred in his approach to foreseeability, when he considered whether Mrs Elrick should have perceived a risk of Miss Pratley reacting as she did and breaking down almost immediately on her return to work. In answer to the court’s question, Mr Langstaff at one point explicitly accepted that the risk actually foreseen was a risk of a breakdown at some future stage if the workload was not reduced. But what was relevant, in his submission, was that it was actually foreseen that, unless steps were taken to reduce the flow of incoming work, Miss Pratley’s health might suffer. Once there was foreseeability of injury at any time in the future, the relevant question was whether Mrs Elrick had reacted reasonably; to that the best guide was the parties’ own agreement or understanding that stacking would be introduced; and, since the failure to introduce stacking was causative, liability was established. Mr Langstaff submitted that the judge erred in so far as he held that it was reasonable for Mrs Elrick to act in a way which was contrary to the agreement regarding stacking which she had reached with Miss Pratley. However, at later stages in his submissions, Mr Langstaff developed another challenge to the judgment. He submitted that, once the risk of illness was identified by Miss Pratley, no-one could foresee precisely when it would eventuate (so that it was, in effect, foreseeable that it might occur immediately) and that Mrs Elrick, by doing nothing in the immediate future, thereby took an unjustified risk which in fact materialised. Mr Langstaff also reminded us that the simpler the step required to remove or avoid a risk, the easier it will be to regard a failure to take such a step as negligent. The first of these ways of putting the case accepts that the judge’s findings regarding foreseeability, but challenges their relevance and the judge’s conclusions as to reasonableness. The second challenges the judge’s conclusions regarding the scope of foreseeability.

I start by considering the underlying legal principles. There was no real dispute about these. The principal authority to which we were referred is Hatton v. Somerset County Council [2002] EWCA Civ 76; 2 AER 1. We were told that one of the cases involved in this authority is under appeal to the House of Lords, but Mr Langstaff told us that the appeal did not raise any point which he regarded as presently significant. In Hatton Hale LJ gave the judgment of the court to which all three of its members (Brooke and Kay LJJ being the other two) contributed. She observed that there are no special control mechanisms which apply to limit claims for psychiatric, or physical, injury or illness arising from the stress of doing the work an employee is required to do, but that these claims require particular care, because they give rise to some difficult issues of foreseeability, of causation and, the court added, of identifying a relevant breach of duty. She cited Simon Brown LJ’s statement in Garrett v. Camden Borough Council [2001] EWCA Civ 395; AER (D) 202 that:

“Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability.”

It is relevant to quote substantial further parts of the judgment in Hatton:

“Foreseeability
[23] To say that the employer has a duty of care to his employee does not tell us what he has to do (or refrain from doing) in any particular case. The issue in most if not all of these cases is whether the employer should have taken positive steps to safeguard the employee from harm: his sins are those of omission rather than commission. Mr Robert Owen QC, for the appellant defendant in Bishop’s case, saw this as a question of defining the duty; Mr Ralph Lewis QC, for the appellant defendant in Jones’ case, saw it as a question of setting the standard of care in order to decide whether it had been broken. Whichever is the correct analysis, the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable in a person of ‘ordinary fortitude’. The employer’s duty is owed to each individual employee, not to some as yet unidentified outsider (see Paris v Stepney BC[1951] 1 All ER 42, [1951] AC 367). The employer knows who his employee is. It may be that he knows, as in Paris’ case, or ought to know, of a particular vulnerability; but he may not. Because of the very nature of psychiatric disorder, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury. Shylock could not say of a mental disorder, ‘If you prick us, do we not bleed?’ But it may be easier to foresee in a known individual than it is in the population at large. The principle is the same as in other cases where there is a contractual duty of care, such as solicitors’ negligence (see Cook v S, McLoughlin v Grovers).

[24] ….. The notion that some occupations are in themselves dangerous to mental health is not borne out by the literature to which we have already referred: it is not the job but the interaction between the individual and the job which causes the harm. Stress is a subjective concept: the individual’s perception that the pressures placed upon him are greater than he may be able to meet. Adverse reactions to stress are equally individual, ranging from minor physical symptoms to major mental illness.

[25] All of this points to there being a single test: whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components: (1) an injury to health; which (2) is attributable to stress at work. The answer to the foreseeability question will therefore depend upon the interrelationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him. As was said in McLoughlin v Grovers, expert evidence may be helpful although it can never be determinative of what a reasonable employer should have foreseen. A number of factors are likely to be relevant.

[26] These include the nature and extent of the work being done by the employee. Employers should be more alert to picking up signs from an employee who is being overworked in an intellectually or emotionally demanding job than from an employee whose workload is no more than normal for the job or whose job is not particularly demanding for him or her. It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable. Also relevant is whether there are signs that others doing the same work are under harmful levels of stress. There may be others who have already suffered injury to their health arising from their work. Or there may be an abnormal level of sickness and absence amongst others at the same grade or in the same department. But if there is no evidence of this, then the focus must turn to the individual, as Colman J put it in Walker’s case [1995] 1 All ER 737 at 752:

‘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 workload.’

[27] More important are the signs from the employee himself. Here again, it is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health. Walker’s case is an obvious illustration: Mr Walker was a highly conscientious and seriously overworked manager of a social work area office with a heavy and emotionally demanding case load of child abuse cases. Yet although he complained and asked for help and for extra leave, the judge held that his first mental breakdown was not foreseeable. There was, however, liability when he returned to work with a promise of extra help which did not materialise and experienced a second breakdown only a few months later. If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental or physical health, then the employer will have to think what can be done about it.

[28] Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee’s work or from complaints made14 about it by the employee or from warnings given by the employee or others around him.

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

[30] It was argued that the employer is entitled to take the expiry of a GP’s certificate as implicitly suggesting that the employee is now fit to return to work and even that he is no longer at risk of suffering the same sort of problem again. This cannot be right. A GP’s certificate is limited in time but many disorders are not self-limiting and may linger on for some considerable time. Yet an employee who is anxious to return to work, for whatever reason, may not go back to his GP for a further certificate when the current one runs out. Even if the employee is currently fit for work, the earlier time-limited certificate carries no implication that the same or a similar condition will not recur. The point is a rather different one: an employee who returns to work after a period of sickness without making further disclosure or explanation to his employer is usually implying that he believes himself fit to return to the work which he was doing before. The employer is usually entitled to take that at face value unless he has other good reasons to think to the contrary (see McIntyre v Filtrona Ltd [1996] CA Transcript 1310).

[31] These then are the questions and the possible indications that harm was foreseeable in a particular case. But how strong should those indications be before the employer has a duty to act? Mr Hogarth argued that only ‘clear and unequivocal’ signs of an impending breakdown should suffice. That may be putting it too high. But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it”

Under the head of breach of duty, the court in Hatton then said this:

“Breach of duty

[32] What then is it reasonable to expect the employer to do? His duty is to take reasonable care. What is reasonable depends, as we all know, upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk (see the oft-quoted summary of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783).

[33] It is essential, therefore, once the risk of harm to health from stresses in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that that breach of duty caused the harm). But in every case it is necessary to consider what the employer not only could but should have done. We are not here concerned with such comparatively simple things as gloves, goggles, earmuffs or non-slip flooring. Many steps might be suggested: giving the employee a sabbatical; transferring him to other work; redistributing the work; giving him some extra help for a while; arranging treatment or counselling; providing buddying or mentoring schemes to encourage confidence; and much more. But in all of these suggestions it will be necessary to consider how reasonable it is to expect the employer to do this, either in general or in particular: the size and scope of its operation will be relevant to this, as will its resources, whether in the public or private sector, and the other demands placed upon it. Among those other demands are the interests of other employees in the workplace. It may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others. As we have already said, an employer who tries to balance all these interests by offering confidential help to employees who fear that they may be suffering harmful levels of stress is unlikely to be found in breach of duty: except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear.

[34] Moreover, the employer can only reasonably be expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employer’s own good. …..”

The court went on to causation and then apportionment and quantification:

“Causation
[35] Having shown a breach of duty, it is still necessary to show that the particular breach of duty found caused the harm. It is not enough to show that occupational stress caused the harm. Where there are several different possible causes, as will often be the case with stress related illness of any kind, the claimant may have difficulty proving that the employer’s fault was one of them (see Wilsher v Essex Area Health Authority[1988] 1 AllER 871, [1988] AC 1074). This will be a particular16 problem if, as in Garrett v Camden London BC[2001] All ER (D) 202(Mar), the main cause was a vulnerable personality which the employer knew nothing about. However, the employee does not have to show that the breach of duty was the whole cause of his ill-health: it is enough to show that it made a material contribution (see Bonnington Castings Ltd v Wardlaw[1956] 1All ER 615, [1956] AC 613).

Apportionment and quantification

[36] Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible (see eg Thompson v Smiths Shiprepairers (North Shields) Ltd[1984] 1 All ER 881, [1984] QB 405, Holtby v Brigham & Cowan (Hull) Ltd [2000] PIQR Q293 and Rahman v Arearose Ltd[2001] QB351, [2000] 3 WLR 1184). Thompson’s case and Holtby’s case concerned respectively deafness and asbestosis developed over a long period of exposure; not only were different employers involved but in Thompson’s case some of the exposure by the same employer was tortious and some was not. Apportionment was possible because the deterioration over particular periods of time could be measured, albeit in a somewhat rough and ready fashion.
[37] It is different if the harm is truly indivisible: a tortfeasor who has made a material contribution is liable for the whole, although he may be able to seek contribution from other joint or concurrent tortfeasors who have also contributed to the injury. ….”

Mr Langstaff reminded us of the following passage from the advice of the Privy Council given by Lord Reid in Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Ltd. (The Wagon Mound No. 2) [1967] 1 AC 617, 642:

“But 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, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity, there can be little doubt but that Bolton v. Stonewould have been decided differently. In their Lordships' judgment Bolton v. Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”

Lord Hoffmann quoted from this passage in Jolley v. Sutton LBC [2000] 1 WLR 1082, 1092. The council there was aware of an abandoned boat on its land. It had put a notice on the boat warning off persons other than the owner and announcing the council’s intention to remove the boat. But it had not implemented that intention. The council conceded that it should have removed the boat because of a risk that children would suffer minor injuries if its rotten planking collapsed below them. The actual injury arose after two children started to repair the boat, using a car jack and wood to prop it up, when the boat then fell off the prop crushing one child. Lord Hoffmann said:

“My Lords, in this calculation [i.e. the weighing exercise, to determine whether action should be taken, to which Lord Reid referred] it seems to me that the concession by the council is of significance. The council admit that they should have removed the boat. True, they make this concession solely on the ground that there was a risk that children would suffer minor injuries if the rotten planking gave way beneath them. But the concession shows that if there were a wider risk, the council would have had to incur no additional expense to eliminate it. They would only have had to do what they admit they should have done anyway. On the principle as stated by Lord Reid, the wider risk would also fall within the scope of the council’s duty unless it was different in kind from that which should have been foreseen (like the fire and pollution risks in The Wagon Mound (No 1)) and either wholly unforeseeable (as the fire risk was assumed to be in The Wagon Mound (No 1))or so remote that it could be ‘brushed aside as far-fetched’: seeLord Reid in The Wagon Mound (No 2) [1967] 1 AC 617.

I agree with my noble and learned friend Lord Steyn and the judge that one cannot so describe the risk that children coming upon an abandoned boat and trailer would suffer injury in some way other than by falling through the planks. Mr de Navarro QC says that apart from its rotten planking, the boat was simply a heavy object like any other. It was no more likely to cause injury to the children than any other heavy object they might be able to get hold of. He draws the analogy of a man who negligently leaves a loaded gun where children play with it and one child injures another by dropping it on his toe. The injury does not fall within the scope of the risk created by the fact that it is a gun rather than some other heavy but innocuous object. So Roch LJ said: ‘Had the boat been sound, then no reason for its removal would have existed.’ (See [1998] 1 WLR 1546, 1555.) I think that in a case like this, analogies from other imaginary facts are seldom helpful. Likewise analogies from real facts in other cases: I entirely agree with my noble and learned friend Lord Steyn in deploring the citation of cases which do nothing to illuminate any principle but are said to constitute analogous facts. In the present case, the rotten condition of the boat had a significance beyond the particular danger it created. It proclaimed the boat and its trailer as abandoned, res nullius, there for the taking, to make of them whatever use the rich fantasy life of children might suggest.”

Lord Mackay agreed with Lord Hoffmann’s speech, as did Lord Hobhouse. Lord Mackay also agreed with Lord Steyn’s speech, as did Lord Browne-Wilkinson. It is right to say that Lord Steyn considered that the council’s concession “did not go to the heart of the case” (page 1088). Like Lord Hoffmann he identified a potential distinction between the type of accident which occurred involving collapse of the propped up boat, and the type to which the concession related. Like Lord Hoffmann he agreed that the judge had held and was right to hold that accidents within the former wider, and not merely accidents within the latter narrower, category were foreseeable and that the council was accordingly liable.

Against this background of authority, the present appeal may be regarded as raising a number of different, although linked questions. In particular:

As to (i), the judge’s findings are clear. Mrs Elrick’s actual foresight and what was foreseeable were limited to the risk of illness arising through continuing work overload over a future period. The risk of immediate collapse, including any risk arising from disappointment of a “cherished idea” developed as a result of a conversation about the possible problems if there was continuing work overload over a future period, was not foreseen; and there was in the judge’s judgment no reason to foresee it. Mr Langstaff invites us to conclude the contrary. I do not consider that his challenge to this aspect of the judgment can succeed, in the face of the judge’s careful findings and his general acceptance of Mrs Elrick’s account of the meeting. What was communicated, foreseen and foreseeable on both sides was a future risk, if work overload continued. What was unforeseen and unforeseeable was the immediate collapse that occurred, even though this can now be seen (in the light of subsequent events and the pyschiatric evidence before the judge) to have been caused in fact, at least to some material extent, by the failure to take steps to introduce stacking by Miss Pratley’s return. The criticisms which Mr Langstaff levies at the judge’s finding were essentially based on Miss Pratley’s account of the meeting in evidence, which the judge did not accept.

In Jolley, the judge and the House of Lords were influenced to conclude that the risk of children meddling generally was sufficiently great to be foreseeable and to call for action, by the fact that a risk of injury by collapse of rotten wood was on any view present and needed immediate attention. It would have called for no greater expenditure of time and effort to cater for the wider risk than the narrower. The present case is not analogous to either Jolley or Hughes v Lord Advocate [1963] AC 837. The only risk which the Council foresaw or which was foreseeable was a future risk. The fact that, when it was raised for the first time with the Council at a routine meeting on 21^st August 1996, Mrs Elrick said that she would write to her superior, Carol Foster, with regard to implementing a system of stacking, and the fact that “it would not have been unreasonable for Miss Pratley to expect ‘stacking’ to be implemented on her return” does not mean that Mrs Elrick either foresaw or that it was foreseeable that any injury of any kind would arise if she did not write about or take steps to implement a system of stacking while Miss Pratley was on holiday. Statements made or expectations created about what an employer will do is one thing. It may be unfortunate and regrettable if they are not implemented or realised. But they are not the touchstone of foreseeability of relevant injury, or indeed of negligence.

In the circumstances mentioned in the previous paragraph, the distinction drawn by the judge is in my view a relevant one. It would be wrong to categorise the relevant risk in each case as a risk of harm of psychiatric illness, and on that basis to ignore the distinction he drew. Jolley to my mind confirms that the analysis needs to be carried further. There is a potentially relevant distinction between a risk of psychiatric injury arising from continuing overload in the future, and a risk of collapse in the short-term arising from disappointment of a “cherished idea” developed as a result of a conversation about possible problems if there was continuing work overload over a future period. The harm in each case is psychiatric injury, but not only does it occur by quite different mechanisms, more importantly it occurs at quite different times in circumstances calling for a response at different times. It follows that the judge was right to consider whether the risk of immediate collapse was foreseeable, which he held it was not.

On that basis, I turn to (ii). Mr Langstaff’s attack on the judgment now proceeds on the basis that Mrs Elrick ought reasonably to have taken steps to eliminate or reduce the foreseen risk of future injury by overload, by introducing stacking by the time that Miss Pratley returned from holiday, and that, since her failure to do so was in fact causative of Miss Pratley’s actual collapse, the Council is liable in negligence.

Firstly, it is not right to treat the indication, or in Mr Langstaff’s submission promise, made by Mrs Elrick in the conversation on 21^st August 1996 as setting the standard of reasonableness. It is no doubt one factor to be born in mind, but no more. The judge’s findings, in my view, rule out a conclusion that Mrs Elrick was negligent in failing to write about or to implement stacking before Miss Pratley’s return from holiday. It was, he found, “entirely reasonable, for Mrs Elrick to see how things were and how Miss Pratley felt on their joint return to work before taking specific action”. That is not to condone failure by an employer to keep to what an employee might reasonably regard (and what Miss Pratley evidently did here regard) as the employer’s word, or failure to act in accordance with the employee’s perceived expectations. But it is to recognise the distinction between such a failure and the negligence with regard to another’s health which is the basis of the present claim. I add that, in asking whether, for the purposes of the tort of negligence, Mrs Elrick should reasonably have taken the steps suggested, it must be admissible to have regard to what was foreseeable if such steps were not taken. The judge’s treatment of the matter is not in my judgment open to criticism.

Secondly, the reasoning underlying Jolley confirms that it is wrong to suggest that liability in negligence for injury of one type can flow from unreasonable failure to prevent injury of another type. So, if the foreseeable risk of future injury which the judge identified is, as I think, distinct from any risk of immediate collapse on return from holiday due to disappointment of a cherished idea, then breach of duty in relation to the former would be no basis for liability in relation to the latter.

Turning to (iii), I have already concluded that it is wrong to describe the risk foreseen or foreseeable as a general risk of psychiatric illness. It was a risk of pyschiatric illness if Miss Pratley had to work under a continuing overload over a longer future term. Even if one were to categorise the risk generally, it would remain the case, on the judge’s findings, that all that was foreseen and foreseeable was a risk of future pyschiatric illness if Miss Pratley had to work under a continuing overload in the future. On that basis, once again I would see no basis for disagreeing with the judge’s conclusion that Mrs Elrick acted reasonably, and was not negligent, in deciding, despite what was said in the meeting or note, to see how things were and how Miss Pratley felt on their joint return to work.

For these reasons, I consider that the judge’s reasoning and conclusions cannot be faulted, and that this appeal fails.

I gratefully adopt the account of the facts and of the issues in the case that is set out in the judgment of Mance LJ. The problem that faces the appellant, as my Lord describes in his § 23, is that whereas one type of injury, future damage if work overload was continued, was foreseen and foreseeable, it was another type of injury, immediate collapse, that in fact occurred. The appellant sought to meet this difficulty by arguing that, since both of those events could be brought under the general description of “injury to mental health”, the mismatch between the damage foreseen and the damage that occurred did not matter. The employer was liable for the latter even though that event was not the foreseen event on which the allegation of negligence was founded.

To assess this argument it is necessary to revert to some basic rules of the law of negligence. It is the most trite of observations that there is no liability for negligence in the air: though it took until The Wagon Mound [1961] AC 388 for the point to be finally confirmed by authority. Thus, any claim in negligence must start from the damage actually in suit: as the headnote to the Law Reports report of the Wagon Mound put it, as cited by Lord Hobhouse in Platform Homes v Oyston Shipways [2000] 2 AC 190 at p 209A:

“it is not the act but the consequences on which tortious liability is founded”

The defendant will be deemed liable for those consequences, not because he has caused them in the course of some careless or otherwise undesirable activity; but only if they were caused by his failure to take precautions against a foreseen or foreseeable and legally relevant danger.

Where the consequences are physical injury caused by failure to remove an obvious physical hazard, the attribution of negligence on the basis of a foreseeable and legally relevant danger is straightforward. It is not necessary that the foreseeable injury should have been in detail the injury that actually occurred. It is enough if an injury occurred, as a result of an act of the defendant that was negligent because it did not take precautions against the foreseeable injury, and that injury can be categorised in the same terms as the foreseeable injury: see for instance the analysis of Lord Hoffmann in Jolley v Sutton LBC [2000] 1 WLR 1082 at p 1091G. Therefore in Jolley, once the boat had been characterised in the terms adopted by the trial judge as something with which children would meddle at the risk of some physical injury, rather than in the terms adopted by the Court of Appeal as something that presented a danger through the collapse of the rotten planking, the negligence, if any injury in fact occurred, was in not removing the boat. It was irrelevant thereafter how in detail the injury that fell under the preferred characterisation in fact eventuated.

Identification of the relevantly foreseeable hazard is, however, less straightforward when the causation of the injury that occurred is less straightforward. As Hale LJ said in her seminal judgment in Hatton v Sutherland [2002] EWCA Civ 76[22], cases involving psychiatric illness arising from extended stress at work (as opposed to such injury caused by a single catastrophic act: see on the latter Hale LJ, ibid., at [20]-[21]) raise difficult issues in attributing to the employer foreseeability, and thus a relevant breach of duty: and she quoted, and emphasised, the observation of Simon Brown LJ in Garrett, also set out by my Lord at his §15, that

“Unless there was a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability”

It was this principle that the judge, correctly, applied to his findings of fact. In making those findings he addressed principally the case originally put by the appellant in §22 of the points of claim:

“For the avoidance of doubt, it is alleged that it was foreseeable that, if the Claimant was required to manage an excessive case load, to work excessively long hours and to work under extremely stressful conditions, her long term health would be adversely affected” [emphasis supplied]

And it is entirely plain from the judge’s judgment, and from his acceptance in full of the evidence of Mrs Elrick, that the perception that he attributed to her was of a danger from culmulative stress in the longer term if methods of alleviation were not provided. That is what the judge meant when he said, at § 28, that it was Mrs Elrick’s recollection that it was a concern for the future, if the work load was not reorganised in some way. “For the future” could hardly sensibly mean “at any time after the meeting when Miss Pratley was at work”, as it would have had to do to encompass the injury that Miss Pratley suffered: that would not be a concern for the future, but here and now in the present. And such a finding would have been contrary to the evidence, not only that Mrs Elrick had no inkling of any health problem affecting Miss Pratley until she raised it, in somewhat muted terms, at the meeting itself; but also Mrs Elrick’s own evidence as to the implications of the meeting.

In reply to Mr Langstaff Mrs Elrick said, at p 46 of the second day’s transcript:

“what I saw in front of me was someone who was telling me very clearly and in a very professional and calm manner that she felt she was going under, that she feared repercussions on her personal health as a result of the pressures at a point in the future. Now, I haven’t written in here ‘At a point in the future’ but that was my perception; that it wasn’t something that was happening to Miss Pratley now. Yes, she was pressurised, she feared she might go under, or she felt she was going under, the workload was great, but that she feared the repercussions on her health at a point in the future. I didn’t have a sense of immediate urgency, particularly on the basis that we had agreed that a referral for health purposes would wait until Miss Pratley’s return from holiday….my belief was that we had an agreement that we would wait until she came back from leave to see how she felt before I wrote to occupational health and that, therefore, there was less urgency about the repercussions on her personal health.”

That was a reply volunteered in cross-examination by a witness whose evidence was accepted in full by the judge. That evidence is wholly inconsistent with any suggestion the Mrs Elrick either did realise or should have realised that, unless stacking were in place as soon as Miss Pratley resumed work, Miss Pratley’s health would be at risk. It fully justified the judge’s finding, at § 28, that

“To find that Mrs Elrick should, in those circumstances, have realised that action had to be taken by the day Miss Pratley returned to work after a three week holiday, would be unreal. It was in my judgement entirely reasonable for Mrs Elrick to see how things were and how Miss Pratley felt on their joint return to work before taking specific action.”

Mr Langstaff did not succeed in undermining this part of Mrs Elrick’s evidence either at the trial or before us, despite being specifically invited so to do. Rather, he returned to another part of Mrs Elrick’s evidence, in which she agreed that, after the meeting, it would have been reasonable for Miss Pratley to expect that stacking would be in place on her return from holiday. That may have been a generous concession on Mrs Elrick’s part; but, generous or not, the concession was irrelevant to the issues in the case. The question is what Mrs Elrick foresaw or ought to have foreseen. She ought to have foreseen disappointment on Miss Pratley’s part; but, as my Lord points out, that is quite different from foreseeing that, as a result of that disappointment, there was the real risk of breakdown posited by Simon Brown and Hale LJJ.

The failure to take steps in relation to the introduction of stacking was, therefore, potentially negligent if it persisted in the longer term and in so doing failed to prevent the future collapse foreseen by Mrs Elrick. But since immediate collapse was neither foreseen nor foreseeable, the failure to make immediate provision to prevent it could not be a relevant act of negligence.

For that reason also, the principal complaint in the Grounds of Appeal, even if made good, would not assist the appellant. Ground 2(i) states that the Judge should have held, and thereafter should have acted on the holding, that

“it was actually foreseen by both the Claimant and her line manager that unless steps were taken to reduce the flow of incoming work which the Claimant had to do, her health might suffer (i.e. that it was actually foreseen that there was a risk to health if appropriate measures were not taken)”

So indeed it was foreseen. But there was no finding, and no evidence to support a finding, that it was either foreseen or foreseeable that steps needed to be taken to avert the injury that in fact occurred, a catastrophic collapse into mental illness immediately upon Miss Pratley’s return to work.

Faced with this difficulty, Mr Langstaff, as we have seen, sought to argue that the employer was nonetheless liable for that catastrophic collapse, which had been occasioned by Miss Pratley’s finding that what was called her “cherished idea”, that a stacking system would be provided to relieve the pressures on her, had not been implemented by the employer. That was because the latter result came within the category of “risk to mental health” that had been foreseen by Mrs Elrick as a result of what she had been told at the August meeting.

The argument assumes that foreseeability of injury to mental health, in whatever form and howsoever to be caused, must necessarily found liability for any injury to mental health that in fact occurs. But it is not even the case that any foresight of injury to physical health necessarily makes the defendant negligent if any, different, injury to physical health in fact occurs. If that were the law, there would have been a very short answer to the problem raised by Jolley. Mr Langstaff indeed sought to support his contention by analogy with Jolley. But in Jolley, although the foreseen and the actual injury were, or might on one analysis have been thought to be, different, they both sprang from the same source, the failure to remove the boat. In our case, and even leaving aside the analysis of Hale LJ referred to in §3 above, the injury foreseen was injury to mental health caused by a long-term failure to reduce Miss Pratley’s work-load: not an immediate collapse caused by failure to keep a promise. To impose liability for the latter because of foresight of the former would indeed be to impose liability for negligence in the air.

We may further note that in this analysis there is no stark divide between physical and mental injury. A defendant may be liable for mental injury on the basis that he should have taken care to protect the claimant from any injury, of whatever sort, caused by a particular incident. But the case that determined that point, Page v Smith [1996] 1 AC 155, involved, like Jolley, a foreseeable and direct risk of injury from a specific source, a road traffic collision. It did not, as in our case, involve mental injury from an unforeseeable reaction to a particular circumstance arising at a different time and by a different causal route from that which the defendant had foreseen as potentially hazardous.

The Judge was, therefore, with respect, entirely correct to ask himself whether the actual mental illness that occurred was foreseeable by Mrs Elrick, to the extent that she needed to take precautions to prevent its occurrence. He held, at §29, that

“To find [Mrs Elrick] should have perceived a risk of Miss Pratley reacting as she did and breaking down almost immediately on her return, would be grossly unfair. The truth of the matter clearly is that Miss Pratley was unwell to a greater extent in August, than she herself realised. There was nothing at the time to alert Mrs Elrick to that.”

That finding was inevitable on the evidence; was not challenged in the Grounds of Appeal; and is fatal to the extended argument advanced by the claimant.

I agree that this appeal must be dismissed but I may approach the matter from a slightly different angle. That may be a matter of modest academic interest but it is of no practical significance.

In my view the first crucial finding made by the judge was this:-

“I readily accept Mrs Elrick’s interpretation and recollection [of the August meeting] that it [Miss Pratley’s concern for her health] was a concern for the future, if the workload was not re-organised in some way.”

The note of that meeting spells out the concern, namely that “MP feels she is “going under”” and “MP fears repercussions on her personal health as a result of pressure”.

As far as I am concerned, that translates into a finding that it was actually foreseen and, a fortiori, it was reasonably foreseeable that there was a risk of future psychiatric harm if the workload was not re-organised in some way. That being a foreseeable risk and the parties being in proximity to each other, a duty to take reasonable steps to avoid that risk arises. Foreseeability has its place in establishing the duty.

The next crucial question is, to apply paragraph 32 of Hale L.J.’s judgment in Hatton v Sutherland and Others [2002] EWCA Civ 76, 2 All E.R. 1:-

“What then is it reasonable to expect the employer to do? His duty is to take reasonable care. What is reasonable depends, as we all know, upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justification for running the risk …”

It will be seen that foreseeability again appears at this stage of the inquiry as a factor in establishing the breach. In this regard I find helpful the passage in Lord Reed’s speech in Overseas Tankship (U.K.) Ltd. v The Miller Steamship Co. Pty. (Wagonmound No. 2) [1967] 1 A.C. 617, 642 where, having set out the well-known facts of Bolton v Stone [1951] A.C. 850, he continued:-

“… It could not have been said to be a far-fetched or fantastic possibility that such a ball would strike someone in the road: people did pass along the road from time to time. So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeable – it was plainly foreseeable. But the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.

But 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, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity, there can be little doubt but that Bolton v Stone would have been decided differently. In their Lordships’ judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.” (Emphasis added by me).

To return to Hale L.J.’s question “what is it reasonable to expect the employer to do? I would answer: “Reduce the workload”. How would a reasonable employer reduce the workload? The answer is by, among other things, implementing stacking. That was not done. That leads Mr Langstaff Q.C. to submit: “Q.E.D.” The error, as I see it, in that argument is that when one is considering a risk of future harm one is necessarily considering a risk which might eventuate the day after it became reasonably foreseeable, or the next week or the next month. The date is indeterminate. That gives rise to another question. We know what it is reasonable to expect the employer to do, but when is it reasonable to require him to do it?

That is where the Wagonmound No. 2 helps me. To repeat:-

“… it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”

Thus I ask: was the real risk of Miss Pratley suffering her breakdown a small risk? I find, as the judge must have found, that this risk was small. He accepted Mrs Elrick’s evidence which included in the passage cited by Buxton L.J.:-

“Yes, she was pressurised, she feared she might go under, or felt she was going under, the workload was great, but that she feared the repercussions on her health at a point in the future. I didn’t have a sense of immediate urgency …”

The next question is: were the circumstances such that a reasonable employer, careful of the safety of his employee, would think it right to neglect? The judge found that they were. He held:-

“To find that Mrs Elrick should, in those circumstances, have realised that action had to be taken by the day Miss Pratley returned to work after a three week holiday, would be unreal. It was in my judgment entirely reasonable for Mrs Elrick to see how things were and how Miss Pratley felt on their joint return to work before taking specific action.”

That in my view was the second crucial finding made by the judge. He found it, as I think he was right to find it, to be a failure to prove breach of the employer’s duty. It is a finding which the appellant clearly regards as harsh but it is a finding which I could not possibly say was plainly wrong, exceeding the generous ambit within which a real disagreement is possible. The judge had the advantage denied to us of hearing these witnesses and forming a view of the case which commands respect in these courts. For what it is worth, when looking at the matter dispassionately, I agree with the judge.

If, contrary to his judgment, a breach had been proved, then the next question would be whether it caused the damage. On the findings of the judge causation was established. It would have given rise to the next question whether that damage was too remote. Foreseeability would be a factor in answering that question. Perhaps differing from my Lords in this respect I would have found that it was as foreseeable as the cricket ball striking a passing pedestrian that failure to implement stacking might have repercussions on the personal health of this claimant causing her mental breakdown. I would not find that the damage was too remote.

I have some sympathy for Miss Pratley. I can understand her saying to Mrs Elrick: “I told you I feared repercussions for my health if my workload was not re-organised. You agreed to write to our superior to implement stacking. You agreed in your evidence that it would not have been unreasonable for me to expect stacking to be implemented on my return. You did not do so. I broke down as a result. It cannot be right you are not responsible for my injury”. It is, of course, a matter of good industrial relations that promises made in the workplace should be honoured. The fallacy, when her complaint seeks to establish tortious liability, is to treat Mrs Elrick’s acceptance that it was reasonable to expect her to have taken steps to implement stacking as the litmus test for the legal question whether that was a reasonable step to expect the employer to take to protect the employee. As I have indicated the judge found that it was not and as a result negligence has not been established and thus this appeal must be dismissed.