Heyward v Plymouth Hospital NHS Trust

LORD PHILLIPS: This an interlocutory appeal in a stress at work case. The claimant, Mr Heyward, alleges that the defendant ("the Trust") caused him psychiatric injury by subjecting him to stress at work in breach of the Trust's duty.

On 15 March 2004 after a case management conference conducted over the telephone, Deputy District Judge Lloyd Davis made an order which restricted the expert evidence that each side could adduce to one consultant psychiatrist. In doing so, he rejected Mr Heyward's application to call both a psychiatrist and an occupational psychologist. Mr Heyward appealed through counsel, again by telephone, on 27 September 2004 to HHJ Overend. His appeal was rejected. He now makes a second appeal to us.

Permission to appeal was granted, as I shall explain, on the ground that the appeal raises an important issue of principle.

This action was commenced on 26 November 2003 in the Plymouth District Registry of the High Court. The particulars of claim settled by Mr Andrew Buchan, counsel with great experience in this field, were lengthy. I identify the essential features of the claim as follows. Mr Heyward was employed by the Trust at Derriford Hospital in Plymouth as a purchasing officer. It was his job to order stores which the hospital needed. In 1998 he was placed under stress when he formed the conclusion that a store-keeper was colluding with his own superior, the store manager, to defraud the Trust. The stress was such that he was forced to take sick leave in May 1998. While off sick he "blew the whistle" on his colleagues by reporting his suspicions to the Trust's deputy director of facilities. When he returned to work in July 1998 the matter had not been resolved. Disciplinary proceedings were subsequently brought against his two colleagues, which resulted in the store-keeper resigning and the store manager being given a final warning. The latter was removed from the stores department but moved into an office next door to Mr Heyward. From this proximity he behaved towards Mr Heyward in an intimidating manner, placing him under further stress. The Trust was in breach of duty in taking this action and thereby subjecting him to stress.

In June 1999 the ex-store manager was dismissed for unrelated misconduct.

By April 1999 those staffing the stores department had been reduced from five to Mr Heyward and only one other. This meant that he had usually to work from 7.00 am to 5.00 pm with no time to stop for a rest break or a lunch break. In May 2000 he broke down under the stress and has had to cease working for the Trust.

The Trust should have carried out a risk assessment of Mr Heyward's workload and alleviated this by allocating additional staff to the stores. Had they done so the psychiatric injury which the Trust should have appreciated he might suffer would have been averted. The damages claimed were put between £50,000 and £100,000.

The defence, dated 22 January 2004, admits most of the primary facts alleged in relation to the whistle-blowing incident and what followed it. It joins issue, however, with Mr Heyward's contention that he was overworked after he returned from his sick leave in July 1998. It further contends that the Trust had taken reasonable steps to address any possibility of work overload in the stores department by commissioning a report from consultants, Green and Kassab, on the conduct of the Trust's services including the operation of the stores department. The Trust denies that Mr Heyward's working conditions exposed him to foreseeable risk of psychiatric harm.

We have been provided with a transcript of the case management conference before Deputy District Judge Lloyd Davis. He did not have the pleadings before him so the nature of the issues had to be explained to him orally. I pause to say that I would commend the practice of carrying out case management conferences or other interlocutory matters by telephone where it is appropriate; but where this is done it is important that the judge who is conducting the hearing should have available before him the appropriate documentary material in a form which the parties to the proceedings are able to duplicate so that their submissions are readily intelligible. The shortcomings in this case underline the desirability of introducing electronic case files into our civil procedure, a step which unfortunately the Court Service has yet to be in a position to fund.

It was explained to the deputy district judge that it was common ground that each side should call one expert witness, although it was not initially made clear to the judge that those would be psychiatrists rather than psychologists. For Mr Heyward it was contend that an occupational psychologist should also be called; he would provide a more detailed analysis in relation to causation as well as addressing liability issues. For the Trust it was submitted that a second expert was unnecessary. The deputy district judge agreed. He gave permission for evidence to be adduced from one consultant psychiatrist on each side. He transferred the case to the Plymouth County Court and ordered exchange of statements of witnesses of fact by 28 June 2004.

We have been provided with a transcript of this appeal which was made pursuant to permission granted by the judge. Despite the deputy district judge's order, witness statements had not been exchanged. The judge had the report of Dr Aylard, Mr Heyward's consultant psychiatrist. He did not have the report of Professor Fahy, the Trust's psychiatrist, which had only just been produced. He was told by counsel for the Trust that the two reports were not "miles apart" and that neither expert suggested that there was need for evidence from an occupational psychologist.

Counsel for Mr Heyward, who was Mr Sullivan standing in for Mr Buchan who had settled the skeleton argument, argued that, while psychiatrists would be able to give evidence as to what had caused Mr Heyward's psychiatric injury, they would not be able to give evidence of the steps that should have been taken by the Trust as reasonable employers to avoid causing such injury. The occupational psychologist would be the person in a position to do this. I should add that the skeleton argument settled by Mr Buchan included this:

Counsel for the Trust argued that the court already had adequate expert assistance to resolve the issues before it, and that the cost of a second expert would be disproportionate, having regard to the amount at stake. Judge Overend agreed with these submissions. I will quote a few short passages from the judgment that he delivered at the end of the telephone appeal:

Unknown to Mr Buchan, those acting for Mr Heyward then applied to the court for an order, in effect staying all further process, while enquiries were made of the two experts who should be directed to have a joint discussion on the issue of whether the court would be assisted by evidence from an occupational psychologist or occupational physician with a view to preparing a joint memorandum of agreed issues; or, if disputed issues, the reasons for such dispute, such memorandum to be filed with the court. That application was agreed to by those acting for the Trust. Mr Buchan has been unable to explain why this application was made, and made it plain, understandably, that it was not one which he would have advised. It seems to us that to put a stay on the exchange of evidence at this point was extremely unfortunate. The deputy district judge had directed that evidence should be exchanged by June 2004. Had that been done the evidence would have been to hand before the appeal to Judge Overend and there would have been no need for this matter to proceed, to quite a large extent, on the basis of conjecture as to the issues that might be raised, as indeed it has.

The inquiries made of the experts by Mr Heyward's solicitor produced the following responses. First of all, Dr Aylard wrote on 23 November 2004:

Mr Buchan said that he did not accept that Dr Aylard was competent to advise on the appropriate measures which an employer should take when returning an individual back to work after suffering on episode of anxiety and/or depression. In the context of this case I do not agree. It seems to me on the facts of this case that the expert psychiatrists were fully competent to express opinions on that matter.

Dr Aylard continued his letter:

What there was was an application to this court for permission to appeal against Judge Overend's decision. I think it is regrettable that, when that application which was refused on paper was renewed orally, the fact that there had been a stay ordered and the subsequent correspondence with the experts was not put before the court.

On the oral hearing Mr Buchan obtained permission to appeal to this court by advancing an argument that is best demonstrated by quoting the following paragraph from his skeleton argument:

In making submissions before us in support of this appeal, Mr Buchan put at the forefront of his argument the need for an occupational psychologist to deal with the issues raised in what he described as his fall-back case of breach of the Directives and breach of statutory duty. He submitted "once the court has considered the position and given guidance it will save a lot of money"; as I understood it, this was to those involved in other cases. "When should an employer have carried out risk assessment? Does the obligation to do so apply to employees as a whole or to the individual employee? What should the employer realise when someone says he cannot cope?" He went on to say: "The defendants usually call someone from human resources and the claimant cannot deal with this. We do not know whether the defendants will call anyone, because no witness statements have been exchanged. But it is usually dealt with in a statement of someone from human resources."

So far as equality of arms is concerned, this appeal has some similar features to one that was before this court a few years ago in Chesterfield v North Derbyshire Royal HospitalNHS Trust [2004] Lloyds Rep Med 90. That was a very serious claim brought on behalf of a child with cerebral palsy, alleged to have resulted from clinical negligence at the time of the child's birth. Each side had permission to call one expert consultant obstetrician but the claimant had sought permission to call a second such expert. In doing so, it was submitted on behalf of the claimant that this was necessary to avoid inequality of arms in the circumstances of the particular case. Those circumstances were that the two medical witnesses who would be giving evidence of fact in relation to the birth of the claimant were now consultant obstetricians of some note. The application to call an additional expert was initially refused but on appeal to this court that decision was reversed. Brooke LJ explained why in these passages:

Drawing an analogy with that case, the anxiety as I understand it of those representing Mr Heyward is that the Trust may call as a witness of fact a witness in position to give expert evidence such as that which could be given by an occupational psychologist, and that that witness will state that he could not reasonably have foreseen or been expected to foresee that the working conditions to which Mr Heyward was subjected would result in his suffering psychiatric injury. An importance difference between Chesterfield and this case is that in Chesterfield the court knew what evidence of fact the defendants were going to adduce; we do not. This is because the directions as to the exchange of evidence of fact were not complied with and a stay was subsequently ordered, a fact of which Smith LJ was unaware.

The issues as they appear to me are relatively simple. It is common ground that the claimant was vulnerable to stress, that the Trust knew of this, and in these circumstances the experts have identified that there are two possibilities in relation to causation of Mr Heyward's psychiatric injury. One is that he suffered a breakdown caused by stress imposed by the work overload in circumstances where he had already had one spell of psychiatric illness and against the background of which complaint is made in relation to the whistle-blowing incident. The alternative is that he was not subjected to work overload, but that he was unable to cope with what was no more than a normal full-time job and had to retire essentially as a result of his own mental fragility and not because of the work burden that was imposed upon him. Those issues are essentially issues of fact. There is nothing to indicate that if the Trust loses on those issues it will argue that the consequences of work overload could not reasonably have been foreseen, or that nothing could reasonably have been done to avoid the work overload.

There is a possibility, it seems to me - a remote possibility - that the Trust will rely on quasi-expert evidence of a type that needs to be rebutted by an occupational psychologist or physician. Should that happen, it will be, and always would have been, open to Mr Heyward to seek permission to call that additional evidence.

As to the fall-back case, it seems to me that Mr Buchan is trying to use this action as a vehicle for the exploration of the applicability of the Directives and Regulations in question when considering liability for stress at work. There may well be cases in which such an exploration will be appropriate. But it does not seem to me on the facts that I have seen that this is such a case. This is a comparatively small stress at work claim where the issues are clear.

On the facts before the deputy district judge and Judge Overend, I can see no criticism that can be made of the case management decision that they reached to limit the expert evidence to one psychiatrist on each side. It seems to me that that was a sensible and proportionate response and one which will cater adequately for the need for expert evidence in the light of any unexpected contingency. Nothing that has been raised before this court causes me to form a different view and for that reason I would dismiss this appeal.

LORD JUSTICE WALLER: I agree, and just will add a few words of my own.

As my Lord has said, this case is a relatively straightforward one so far as liability at common law is concerned. The claimant will allege that he was vulnerable, that the Trust were aware that he was vulnerable, that it was foreseeable that if they acted in particular ways that he would suffer psychiatric injury.

There is also pleaded what Mr Buchan called his fall-back case, which alleges breaches of certain EEC Directives Regulations, and matters of that sort, including breaches of certain guidelines. Mr Buchan wishes on behalf of the claimant to call an occupational psychologist, and he puts that on two bases. The first is, as my Lord has indicated, an attempt to use the case as a vehicle in effect for challenging certain of the Court of Appeal decision like Hatton, and the second is on the basis that the defendants may call a witness relating to the regulations and guidance and it would be lack of equality of arms if an expert could not be called by the claimant.

As to the first point I agree with my Lord. There may be cases in which there will be a need to tackle the wider issues, but this case is not one of them. As regards equality of arms - and it was that that troubled Smith and Mummery LJJ when giving permission to appeal - the real difficulty is we do not know with any clarity what evidence may be called by the defendants. During argument, Mr Miller was pressed as to the evidence likely to be called by the defendants and he could not with precision say what was likely to happen. He reiterated what has always been the defence position, that this case was likely to turn on its own particular facts. If - and it is a big if - that turned out not to be accurate then, as my Lord has said, there would be an opportunity for a further application to call evidence to deal with it. But again in agreement with my Lord there can be no criticism as it seems to me of the decision either of the district judge or that of the circuit judge and I, too, would dismiss the appeal.

LORD JUSTICE LLOYD: I agree.