Whiteside v London Borough of Croydon

Introduction

The claimant, Stephen Whiteside, worked for the defendant, the London Borough of Croydon (“LBC”) as a Principal Planning Officer (Urban Design) in the Planning and Transportation Department (“PTD”) from 4 September 1989 until he resigned his employment on 8 March 2006. During that period, Mr Whiteside had two breakdowns. The first resulted in his being medically certified as being unfit for work between May 1999 and August 1999 when he returned to work. The second resulted in his being medically certified as being unfit for work on 11 October 2004 with symptoms of anxiety and depression and he never returned to work for the purposes of working. He remained certified as being unfit throughout the ensuing seventeen months and his resignation letter stated that he was resigning forthwith. The resignation was said to have been prompted by alleged mismanagement by LBC of its sickness procedures and confusion surrounding his request for early retirement on medical grounds. The illness and medical matters were said to have been caused by poor line and project management over several years. This resignation led to his claiming damages for wrongful dismissal in the Employment Tribunal, based on his alleged constructive dismissal by LBC which he accepted with his resignation letter. The constructive dismissal was alleged to have been the mismanagement in the line, project and sickness procedures that had been referred to in his resignation letter. This claim was dismissed by the London South Employment Tribunal on 6 December 2006.

The claimant issued this claim on 16 April 2007 in the Basingstoke County Court. On 18 February 2008, the claim was transferred to the Croydon County Court and on the 21 February it was again transferred, on this occasion to the Queen’s Bench Division of the High Court. The claim is based on a series of alleged breaches of statutory duty and contractual and common law duties which cover some of the pre-11 October 2004 matters on which the wrongful dismissal claim was based and also other matters. These breaches are alleged to have caused Mr Whiteside occupational stress, Post Traumatic Stress Disorder (“PTSD”) and depression which in turn have resulted in his loss of employment, to be handicapped in the labour market and to cause him on-going pain and suffering. The claim seeks the recovery as damages of his claimed loss of earnings of £108,100, loss of future earnings of £135, 311, loss of pension of £115,036 and various itemised past and future losses which produce a total, without interest, of £364,955.

At the trial, neither party had properly prepared for any aspect of the damages claim. I did not formally rule that the trial of liability should be separated from the trial of all issues of quantum but neither party indicated an objection to my taking that course if I was so minded. I have decided that quantum issues should not be addressed in this judgment and that liability and quantum should be split. There was no oral evidence adduced or submissions advanced as to quantum at the trial. In this context, quantum issues include all issues of causation of loss, remoteness of damage and the quantification of loss including issues relating to any failure by Mr Whiteside to mitigate his loss. It also includes the issue of any contributory negligence by Mr Whiteside occurring after 11 October 2004 that should reduce any loss otherwise recoverable by him insofar as that plea is maintainable to reduce any claim for damages that he has that is based on or arises out of any breach of contract by LBC and is distinct from and not covered by the plea that Mr Whiteside failed to mitigate his loss.

This splitting of liability from quantum requires me to decide in this trial whether LBC acted or failed to act in breach of its contract of employment with Mr Whiteside and, if so, whether that breach was a material cause of any damage to Mr Whiteside’s mental, psychiatric or physical health and to his ceasing work on medical grounds on 11 October 2004. Thus, issues relating to any underlying condition that Mr Whiteside was suffering from before his breakdown in October 2004 and to any failure by Mr Whiteside to take reasonable steps to look after himself and to preserve his wellbeing must be resolved in this judgment since those issues are directly related to LBC’s liability and to the related issue of what actionable damage to Mr Whiteside’s health was caused by any proved breaches of contract by LBC.

Basis of Claim

Mr Whiteside suffered a work-related, stress-induced psychiatric injury in 1999 and, on his return to work, both he and LBC were advised by LBC’s medical advisor that in order to control his stress levels so as to avoid a repetition of the breakdown he had suffered, he should avoid having to concentrate on multiple problems and work on single, specific tasks so as to avoid what was described as his organisational problems. Following his return to work throughout the return period from July 1999 until October 2004, he was provided with an excessive workload. This was coupled with poor management which failed to control or organise the workload of the professional staff working in the department he was appointed to, the Urban Design Department (“UDD”). The poor working conditions were exacerbated by a lack of any strategic guidance, support of the often contentious design work and advice that the UDD was asked to provide or interaction with the views and concerns being expressed to his line manager by Mr Whiteside in both formal annual job reviews and in less formal frequent contacts between them. In addition, UDD never properly evaluated Mr Whiteside’s job, never undertook any suitable or sufficient risk assessment of his susceptibility to work-related stress, never properly re-organised the management and supervision of the UDD despite an extended effort at doing so and never devised or implemented appropriate health and safety policies relating to stress-control and the reduction of the risk of stress-related psychiatric illness. Over the period that Mr Whiteside, who was already susceptible to stress-related health injures, was subjected to these problems, became more and more stressed. He drew these problems to the attention of LBC management, particularly in his job reviews, and his line managers ignored or failed to respond to these warnings and all the other obvious warning signs that Mr Whiteside was being subjected to unacceptable stress levels as a result of his working conditions. Following a particularly stressful period of working through 2004, Mr Whiteside’s health completely broke down in October 2004. This breakdown was caused by the accumulation of the various factors already summarised. It was foreseeable that these factors gave rise to a significant increase in the risk of such a stress-related breakdown. These factors could and should have been avoided had LBC complied with its statutory duty of care in relation to Mr Whiteside in relation to his psychiatric health. In consequence, the resulting breakdown gives rise to a claim for damages for the psychiatric injury that he suffered.

LBC denies each step in Mr Whiteside’s claim. It is therefore necessary to decide these issues:

Trial

At the trial, each witness submitted a full witness statement and those witnesses who had given evidence in the Employment Tribunal also submitted their witness statement submitted on that occasion. Mr Whiteside gave oral evidence and also called an LBC councillor, Mr Timothy Godfrey, and the Chief Executive of a body called JetSet Trout in the Classroom UK (“JetSet”). Both witnesses had worked extensively with Mr Whiteside and were able to give evidence about the particular stresses that he had been subjected to in 2004. Mr Whiteside also adduced two witness statements from his sister, Ms Adrienne Crane, which gave general background evidence about Mr Whiteside’s life outside his working environment. LBC called three witnesses. The first witness called by LBC was Mr Andrew Beedham who was both the effective head of the UDD and Mr Whiteside’s line manager. LBC also called Mr Gordon Sim, who was both Divisional Director for Urban Regeneration, Planning and Transportation and Mr Beedham’s line manager. Finally, LBC called Ms Gillian Bevan who was employed by LBC as a Human Resources advisor. She gave background evidence about Health and Safety issues since she only started to work for LBC as a Human Resources advisor in November 2005. All three LBC witnesses provided a witness statement for this action and their Employment Tribunal witness statement. Finally, both Mr Whiteside and LBC adduced expert reports from a Consultant Psychiatrist. Mr Whiteside called Dr Christine Murray, a consultant at the Priory Hospital, Chelmsford and LBC called Dr Adrianne Reveley, a psychiatrist in private practice who had been a Consultant Psychiatrist at the Maudsley for twenty four years until 2003. Each psychiatrist submitted a report, supplementary written evidence and a full jointly signed experts’ written statement and also gave evidence. Their evidence was very similar with no discernible disagreement on all relevant issues on which they gave evidence.

Factual Background

Mr Whiteside was born in 1953 and at the date of the trial was fifty six years old. He left school in 1971, studied architecture for the first year of a degree course between 1971 and 1972 and then left the course and worked for two years with a highways engineering contractor for two years. He then worked as a Drawing Office Assistant/Architectural Technician with the Property Services Agency of the Department of the Environment (“PSA”) in Manchester between 1974 and 1978. In that period he also obtained an HNC in Building from Stockport College of Technology in 1976. The PSA sponsored him to undertake a degree in landscape architecture and he took a BA degree in Landscape Architecture between 1978 and 1981 and a Diploma in Landscape Design in 1983 from Manchester Polytechnic. In 1982, he saw his General Practitioner as a result of his anxiety symptoms which he attributed to stress caused by his working temporarily in Croydon for the PSA and travelling regularly to his house and wife in Manchester. He was prescribed beta blockers and, as he explained to Dr Reveley when she interviewed him for her report for the court, he just took himself away to Dorset for a period. He qualified as a Chartered Landscape Architect in 1984 having passed the necessary Landscape Institute Examination. He then worked for the Property Services Agency as a Landscape Architect between 1983 and 1989. He applied for and was appointed to the post of Principal Planning Officer (Urban Design) with LBC and his employment started on 4 September 1989.

Mr Whiteside was appointed as a Principal Landscape Architect to the UDD, which was a Division within LBC’s Planning and Transportation Department. UDD was a separate and small specialised division within this Department whose function was to provide management and design services and advice to LBC and to other parts of the Planning and Transportation Department in relation to improved urban design and better care for the environment. These services were provided for the entirety of the PRD’s work and the UDD was, in consequence, involved it in all of LBC’s planning and transportation functions and the implementation of LBC’s urban conservation policies. UDD consisted of three principals who headed its three sub-teams of planning, architecture and landscape. Mr Whiteside was the head of the landscape sub-team and he had two part-time officers working under him. Although the reporting lines and the size of the UDD have changed somewhat over the years, Mr Whiteside’s job description and role and function within the UDD remained essentially unchanged throughout the time he worked in the UDD between 1990 and 2004. The workload of UDD continued to grow enormously throughout the period and its functions also increased to include project and resource management work. Meanwhile, the number of professional staff within UDD remained the same until about 2002 when this number was reduced as financial and resource constraints took effect. Thus, in 1994, UDD had an Assistant Director, three principals and twelve other professional staff. In the period April 2002 to October 2004, UDD had a Chief Planner, two principals and ten other professional staff.

Mr Andrew Beedham joined both LBC and the UDD at the same time as Mr Whiteside and was appointed as head of the planning sub-team. In May 1993, he was promoted to be the Head of UDD, then called the Assistant Director, and remained in that post, although it was renamed Chief Planner, from then until he left LBC for a post in another Local Authority in 2009. Mr Beedham was, therefore, Mr Whiteside’s line manager throughout the remaining period of Mr Whitesde’s employment with LBC following Mr Beedham’s appointment as Assistant Director in 1993. Mr Beedham, from October 1995, in turn throughout the period until Mr Whiteside stopped working for UDD, reported to Mr Iain Sim who retired in 2009.

The UDD was set up in 1989 and Mr Whiteside was recruited as a landscape architect and designer. In the early years, he was able to concentrate on that work although, from the start, he was dissatisfied with the fact that there seemed to be a lack of direction or strategic planning being provided for the UDD by those managing the PTD. However, he became involved as the member of the team responsible for a number of larger projects. These were overseen and co-ordinated by project director working with a project board. In about 1990, Mr Whiteside was asked to join project involved in the Tramlink project to plan and implement the light rail system that was being introduced for LBC. Mr Sim got to know Mr Whiteside professionally when he joined the board of this project when he started to work for LBC in 1995. Until that time, the project had gone well and Mr Whiteside had been able to provide valuable design input under the direction of the project Director. This had involved him in preparing numerous detailed landscape plans, outline specifications and cost estimates for the project. However, soon after Mr Sim arrived, the project changed in scope and direction due to severe financial cutbacks. The effect of these was to remove almost all the landscaping elements of the project with the effect that several years’ design work that Mr Whiteside had undertaken, to considerable acclaim by the team, was jettisoned or significantly reduced in scope. Mr Sim stated in evidence that this design work was very good but that Mr Whiteside was unable to provide the multitasking needed to participate in taking the project forward in what had become an essentially fire fighting project. This was work for which Mr Whiteside had had no training and which he felt was being undertaken without any clear direction. The upshot was that, in about October 1996, Mr Whiteside was removed from the project, without any consultation, and his place in the project team was taken by one of his subordinates within the UDD, Mr Tim Naylor. This was both very demoralising and humiliating for Mr Whiteside and he expressed his feelings in his Job Review Record Form compiled in April 1997 as follows:

“Insensitive handling of restructuring of the landscape team, change of responsibilities and reduction in staff has resulted in lack of clarity, consistency and direction on common landscape issues.”

There was no discussion with Mr Whiteside as to whether and why he should leave the project team or as to why Mr Naylor was to replace him. However, it is clear from documents disclosed by LBC that the decision to replace Mr Whiteside with Mr Naylor was taken because the project team had no further need of the assistance of a landscape designer and, instead, needed additional urban design input. Mr Naylor was dually qualified in both landscape and urban design and the redeployment was decided on because Mr Whiteside’s landscape design services were needed elsewhere and Mr Naylor was available to provide the urban design services then required on the Tramlink project. Mr Sim sought to explain Mr Whiteside’s removal from this project on the grounds that Mr Whiteside was no longer pulling his weight in the team but that view is not supported by the documents provided to the court and there is no evidence that this redeployment was taken for any other reason than to enable the resource deployment. Mr Sim’s views expressed in his evidence seem to have been post-facto rationalisation aimed at downplaying Mr Whiteside’s critical evidence about LBC’s management style.

When Mr Whiteside left the Tramlink project board, he was redirected towards a programme which was being set up whose objective was to promote environmental improvements for the South Wandle area. This seven-year project was intended to re-open the Wandle River and purify it and to regenerate the Wandle Valley so as to make it a rural area within the urban Croydon environment which could be used and enjoyed by the entire local population. These objectives were to be undertaken by a partnership of local authorities and private environmental groups. LBC’s input was provided by UDD and Mr Whiteside was assigned to be the lead member of LBC’s team for this project. The early work and input from the UDD involved much mapping and landscape design work. Mr Whiteside, as the lead member of LBC’s team, had a clear role on the project board but he had to deploy much of the landscaping work provided by LBC to one of his deputies so that he could help out with the ever-growing work load that UDD was undertaking in relation to traffic and transportation.

Mr Whiteside was given a co-ordinating role in this somewhat diffuse range of responsibilities advising how various transport and traffic projects could be co-ordinated whilst they, as he explained, “meandered along”. This proved to be particularly stressful since Mr Whiteside felt that he did not have the training or skills for this work, was not receiving sufficient guidance and support from senior managers and was being required to work in areas that he had neither been trained for nor had had any appropriate experience of. He also felt considerable disappointment and frustration that he was unable to apply his skills to the South Wandle project where they could be usefully applied and where they were clearly being recognised and appreciated. It was soon after he wrote that memorandum that Mr Whiteside broke down at home and was signed off from work from May until August 1999.

It was soon after he wrote that memorandum that Mr Whiteside broke down at home and was signed off from work from May until August 1999. The work on the Transport, Traffic and Environment project was particularly stressful since Mr Whiteside had no authority over most of the staff who were working on the project. Moreover, the project needed the support and guidance from senior members of the Planning and Transportation Department which was not provided. The stresses that Mr Whiteside was working under can be seen from this extract of a memo written by the project co-ordinator, Ms Paula Hutchings, to Mr Sim dated 30 October 1998:

“I have arranged a meeting with you, Andrew Beedham, Paul Hindreth and myself on 13 November 1998. This is to discuss severe problems we have experienced over recent months with the transport part of this South Wandle SRB project.

As you know, given the difficulties experience on this project in the past, it was agreed that Steve Whiteside would continue to be project manager for the environmental improvements project but would also act as project co-ordinator for the public transportation project and the road safety/traffic project.

… Steve Whiteside has had to work extremely hard, together with Andrew Beedham, to retrieve the situation … However, we are still behind schedule and some concerns have been expressed by Directors on the board and Councillors. This is particularly worrying given the problems with the MVA Study.

I cannot stress enough how important it is to find an alternative way of delivering the work required on the transportation side. This is a high profile project. … Progress in getting this case together has been considerably hindered and solutions to remedy the situation need to be found as soon as possible.”

The situation so far as Mr Whiteside did not change and he made his feelings clear in a memorandum he wrote to the project co-ordinator dated 4 December 1998 in which he stated:

“I have decided that I will be unable to fulfil the role of co-ordinator for the combined Transport, Traffic and Environment project or take on the responsibility of managing a consultant, of a different discipline, who will clearly be faced with an impossible task.

… my health and that of my family, my responsibilities to my staff and our ‘legitimate’ projects, must come first from now on.”

Ms Hutchings, who clearly shared Mr Whiteside’s views about the lack of management support and direction, was off sick for a period at this time. It appeared to Mr Whiteside at that time that Ms Hutchings’ illness was stress-related that had been created by the stresses of co-ordinating this project. Soon after Mr Whiteside wrote his memorandum, he broke down at home and was signed off from work, in his case from May until August 1999.

When Mr Whiteside returned to work, it is clear that LBC knew, or should have known, that his breakdown was stress-induced as a result of the a working routine which involved him overworking, concentrating on multiple problems without sufficient direction in circumstances where much of his work, although of high quality, was not appreciated because it could not be, or was not made use of due to financial cutbacks. Furthermore, he was being required to undertake work which he felt he had neither the training nor the aptitude for. In short, there was, as LBC medical advisor advised Mr Whiteside’s senior management, “an organisational problem”. It is clear that, in context, this advice related to LBC’s inability to organise and manage Mr Whiteside’s work and working environment.

It is clear that at the time that Mr Whiteside returned to work, both Mr Sim and Mr Beedham were aware in general terms of why Mr Whiteside had had a breakdown and as to what he should avoid in order to keep his stress levels under control. Mr Sim had received a brief report from LBC’s medical advisor and had worked with Mr Whiteside extensively and was fully aware of his susceptibility to stressful working conditions and Mr Beedham had had extensive discussions with Mr Whiteside, both formal for job reviews and informal in their extensive and frequent socialising in local public houses outside working hours. Moreover, both Mr Sim and Mr Beedham had had direct involvement in and knowledge of the stressful working conditions that Mr Whiteside had encountered in the period leading up to his breakdown.

Soon after Mr Whiteside returned to work in the summer of 1999, he again became involved in an extensive urban transportation project known as the Upper Norwood project. He had had some passing involvement in this project when working on the umbrella Transport, Traffic and Environment project prior to his breakdown. This turned out to be another project which evolved from one with significant landscaping requirements to one which, due to financial cut-backs, had eliminated that involvement and which transformed Mr Whiteside’s role from landscaping to fire fighting and transportation co-ordination. At one point soon after his return to work, he was asked to speak for LBC at a public consultation where it was known that hostile views as to the evolving proposals for traffic management in South Norwood would be expressed. This was a role which was outside Mr Whiteside’s abilities and experience and he was placed in a very embarrassing situation when he was, indeed, confronted by irate local residents. It is, with hindsight, remarkable that this did not cause a relapse in his health.

Mr Sim also became much more involved in the South Wandle project on his return. Indeed, he was nearly placed in a similar situation as he had faced in the South Norwood project because he was asked to speak at a public meeting set up to explain “Wandle Matters” to the public. The audience would have been much more sympathetic and understanding than he had faced in South Norwood but Mr Beedham recognised the risk to Mr Whiteside’s health and took over the address. Mr Beedham also recognised the possible dangers that Mr Whiteside was being subjected to generally so soon after his return to work. He wrote a memorandum to LBC’s Personnel and Training Manager on 3 February 2000 which was also seen by Mr Sim, dated 3 February 2000, which stated:

“Since [Steve Whiteside] returned he has become increasingly involved in both Crystal Palace and South Wandle regeneration partnership schemes. There is the likelihood that this will escalate to such an extent that Steve will be in the same position as he was last May unless alternative arrangements are put in place to enable Steve to progress private work.”

Mr Whiteside complained in his subsequent job review that he was being overloaded with work on these projects without any clear direction from management on what he should concentrate on, what his goals and objectives were and what time he should allocate to them. Mr Sim stated in evidence that he did not do anything about these comments or even ask to see Mr Whiteside in order to discuss them with him because of time pressures, because it was not clear what he was asking for and because he did not agree with Mr Whiteside’s views. Meanwhile, nothing was done to assess Mr Whiteside’s workload or to reduce the possible build up of stress that he was being subjected to.

On Mr Whiteside’s return to work, he raised with Mr Beedham the possibility of his undertaking limited outside privately commissioned landscaping design work. The reason for this was that he had been advised, during counselling sessions that he took during his period of sick leave, that his stress and consequent breakdown had partly been caused by his low esteem and feelings that his design and landscaping capabilities were not being appreciated or utilised. Mr Beedham considered this to be a good idea and it was one that was supported by LBC health advisor. Mr Beedham was, in consequence permitted to take one day a week off for this work for a short period after his return and, thereafter, was permitted to undertake private work outside his working time for LBC. As it turned out, although he continued to undertake private work, he only undertook a small number of commissions and these did not interfere with his LBC employment. They did, however, appear to have a beneficial and therapeutic influence on his stress levels.

Throughout the period from 2000 until he became ill in 2004, Mr Whiteside’s work load continued to increase and, additionally, he also became heavily involved in UDD management issues. Initially, with the encouragement of Mr Beedham, he undertook an Open University management course. He decided to take this course because he wanted to acquire a wider range of skills to assist him in his work as a member and leader of project teams and boards and also to provide him with additional skills to address the continuing management difficulties he was encountering at work. He undertook and successfully completed this course in the period between November 2001 and April 2002.

Mr Whiteside was significantly involved from 2002 onwards in work within UDD to implement three related policies being implemented by LBC at that time. These were, firstly, the implementation of PRINCE2, a national project management framework standard that was to be adopted and adapted as appropriate by LBC in implementing all its projects; secondly, the implementation of a Health and Safety policy with appropriate health risk assessments and a new definition of line manager’s responsibilities and, thirdly, the implementation of a new management structure for the UDD coupled with the development of a business case for the UDD to become a separate stand-alone department.

The project which engaged much of Mr Whiteside’s time was the South Wandle Valley project and an associated project, the River Links programme. In his work on these projects, Mr Whiteside became involved in the JetSet Club and worked closely with Mr Alan Suttie, the chief executive of the JetSet Club. Mr Suttie had been in the forefront of the work that aimed to promote the ecological improvement of the Wandle Valley and the Wandle River. He particularly promoted a project to map both the Valley and the River and Mr Whiteside became a trustee of this project and provided significant and much valued work for it. Out of the project, the JetSet Club emerged, the name being an acronym for “Junior Environmental Taskforce/Senior Environmental Taskforce”. This Club sought to bring the River Wandle back to life by assisting those, particularly school children, who were aiming to hatch and cultivate freshwater fish in the watercourses in the Wandle Valley. As an adjunct to his work for the mapping project and the JetSet Club, Mr Whiteside worked with the South Valley project to de-culvert the River Wandle which was almost entirely buried underground within LBC. This project became a central feature of the South Wandle project. A significant culverted stretch of the River Wandle passed underneath a site on which part of the former Purley Way Gasworks was situated and that site became the subject of a planning application in 2003 by Prologis Developments Limited (“Prologis”), a company who build large commercial and retail storage sheds, to develop this site with such storage sheds. If this development was allowed, it would preclude a significant stretch of the River Wandle from being deculverted which would strike a mortal, or even a fatal, blow to the South Wandle project which LBC was firmly promoting at that time. The importance of the South Wandle project to LBC at that time was explained in evidence by Mr Timothy Godfrey, who had been since 2002 a Councillor for the Selhurst Ward in LBC and who was prominent in committees of LBC that were seeking to improve the Wandle Valley and Wandle River natural environments. Both Mr Suttie and Mr Godfrey provided detailed evidence of the high quality of Mr Whiteside’s work throughout the years he was associated with both the Wandle Valley and the Wandle River and, in particular, his work in assisting LBC in its attempts to ensure that the Prologis’s plans to develop the Purley Gasworks site did not adversely affect the deculverting plans for the River Wandle.

Mr Whiteside was involved in the Prologis planning application in two stages. The first stage involvement was in 2003 when, as line manager of Mr Naylor, he assisted in providing advice to the planning officers who were concerned with the Prologis planning application. These design and landscape comments were intended to show that the size and layout of the proposed development would have an adverse environmental impact on the local residents and would preclude the deculverting of the River Wandle, it would be possible to develop the site in a way which would allow both deculverting and acceptable environmental impact. This advice supported JetSet Club’s views which were set out in a letter from its Chair of Trustees to the Director of Planning and Development in November 2003. The letter, which was copied to Mr Sim, stated:

“The site has always been the prime candidate to kick-start the Wandle Park project and to this end we are very concerned that the applications show no sign of including deculverting. The applicant should be advised to work with the Environment Agency to develop a scheme that would improve the ecological and environmental value of the site and its surroundings in line with the Mayor’s Blue Ribbon Network Principles. Such a scheme may also provide the necessary impetus for the wider improvements contained within the Council’s own River Links Programme.”

The Prologis planning application was, however, controversial. There were strong grounds for approving the application, particularly as it would have had the affect of providing a good commercial use for a prime but derelict commercial site adjacent to a major highway passing through LBC which would provide employment within LBC. The planning officers involved in the application presented an “on balance” recommendation that the Prologis application should be accepted by the LBC committee that was to decide the application. At the meeting, a detailed and persuasive case for rejecting the application was presented by Mr Suttie who was greatly assisted by Mr Whiteside in preparing and drafting the speech and presentation that Mr Suttie put forward. At the meeting, the committee unanimously rejected the application, principally because of it was so much in conflict with LBC’s environmental planning policies. It was Mr Whiteside’s understanding that this rejection of the planning officers’ advice to accept the application was met with both fury and disbelief by the planning officers concerned. So much so that a report appeared in the local paper to the effect that Prologis had been given indications before submitting the planning application that approval would be likely and had already pre-let all the proposed units on the site. As a result, it was suggested that the committee was wrong to go against the advice of its planning officers and experts and reject the application.

The second phase of Mr Whiteside’s involvement in the Prologis planning application was with the resulting planning appeal launched by Prologis. LBC, having rejected the planning application, had to support that rejection at the forthcoming hearing of Prologis’s planning appeal. That required a Rule 6 statement setting out LBC’s case for rejecting the application to be prepared along with the preparation of relevant evidence and witness statements, particularly the witness statement of LBC’s principal planning witness who would subsequently appear as a witness and be cross-examined on all aspects of LBC’s policies and reasons that had led to the initial rejection of the application. Not surprisingly, UDD and Mr Whiteside were instructed to provide assistance to LBC’s team, led by the planning officer who was the case officer for the Prologis application and appeal, who had the task of preparing and presenting LBC’s case to the planning inspector at the hearing of Prologis’s appeal. In addition, UDD, through its involvement on behalf of LBC with the South Wandle project and with JetSave, was asked by JetSave and by Mr Godfrey and at least one other Councillor, to provide active assistance in the preparation of evidence for appeal that would be provided by Mr Suttie, Councillor Godfrey.

The enquiry raised difficult and conflicting issues and involved contentious consideration of planning and political policy, traffic and environmental considerations, technical issues involving hydraulic engineering and water pollution and landscape design. In relation to the deculverting issue, the active involvement of, and liaison with, the Environment Agency was required, given its role as the regulator of publicly accessible watercourses and drainage. Moreover, the site was still heavily contaminated from the lengthy period that it was used by the Gasworks and the relevant parts of the site accessible by the deculverted River would need to be decontaminated and isolated from moving water sources. Further difficulties, involving liaison with outside bodies, arose in relation to traffic access by significant daily heavy duty vehicles onto and away from the site directly onto a major highway.

LBC and its officers clearly had a very difficult task in relation to the Prologis planning appeal. LBC had, in reality, three separate functions: to prepare and present LBC’s case for dismissing the planning application despite its considerable merits on planning and policy grounds, to liaise with outside statutory bodies concerned with highways and environmental control, particularly as negotiations with regard to possible planning conditions and agreements were needed in an attempt to resolve the contentious technical issues and produce an agreed resolution of the technical issues thrown up by the Prologis planning application and to liaise with and co-ordinate the separate opposition cases to be presented by JetSave and other active objectors who were seeking to ensure that the River Wandle was deculverted across the site.

It would seem that LBC did not decide how it would fulfil these three disparate and conflicting roles save to instruct the case officer to co-ordinate LBC’s preparations for the appeal and to instruct UDD to provide assistance as necessary in relation to all landscaping and urban development issues. Nothing was done to address two fundamental problems. The first was that the case officer and senior planning officers were strongly supportive of the planning application and had little inclination or professional support for the opposition of LBC to that application as reflected in its rejection of the application and its political decision to oppose the appeal. So much so that a political decision was taken that LBC’s evidence and principal witness should be strongly supportive of that political decision and that the principal witness should be a senior planning officer who had not been involved in the appeal. The second problem, which was one arising for UDD, was how it could operate so as to fulfil its disparate roles that, largely be default, it was left with. These were to take the lead in preparing LBC’s Rule 6 statement and witness statements, to liaise with the Environment Agency, to prepare schemes showing how the difficult technical issues could be resolved so as to deculvert the relevant stretch of the River Wandle in a practical and affordable manner and to take the lead in co-ordinating the preparation of JetSave’s separate opposition to the application. No management decision, strategic direction or function management appears to have been undertaken by the PTD so as to provide the necessary steer to the UDD as to how and by whom these difficult and conflicting roles would be carried out. Mr Sim was not professionally supportive of the deculverting objections and Mr Beedham provided little guidance to those working under him in UDD as to how those directly involved should carry out their involvement.

It was left to Mr Whiteside and his deputy to, in effect, “do what is necessary”. As Mr Naylor’s line manager, it was therefore left to Mr Whiteside to decide what should be done, how it would be done and with what input of work. Given his personal and professional involvement in South Wandle environmental matters and with JetSave over a seven-year period, he was professionally and personally committed to the environmental case, particularly as he felt that the South Wandle projects were the only projects where his expertise had been both valued and effective. As a result, he personally shouldered the brunt of the work in relation to the preparation of LBC’s and JetSave’s cases for the appeal and arranged for Mr Naylor to provide UDD’s input into liaison with other agencies under the direction of the planners still notionally co-ordinating LBC’s input into the appeal.

Three examples can be provided of the enormous difficulties that, by default, Mr Whiteside was presented with. During March and April 2004, Mr Whiteside undertook a considerable amount of work assisting both LBC and various objectors to prepare rule 6 statements and to undertake other preparatory steps. He encountered considerable difficulty in obtaining any information from the case officer Mr Rawlinson such that a joint memorandum was sent to Mr Sim by Mr Beedham, Mr Whiteside and Mr Naylor dated 5 May 2004 which stated:

“In our opinion … [the case officer] has deliberately kept information from fellow officers regarding issues relating to the rule 6 statement and associated negotiations on other applications for this site.

[The case officer’s] continuing attitude threatens to seriously compromise our case at appeal and render abortive the efforts currently being made by UDD officers to uphold the wishes of the Council”.

Nothing appears to have been done about this complaint. Mr Sim was unable to explain why this was so, notwithstanding the very serious allegation of professional misconduct that the memorandum conveyed. Equally, importantly, nothing appears to have been done to open up the flow of essential information from the appeal team to UDD who was, in reality, undertaking the brunt of the preparatory work for the appeal.

Preparations were delayed whilst Prologis submitted a second planning application with some of the details amended to take account of issues raised by officers prior to the first application being considered by LBC’s planning committee. When no decision was taken within the statutory period, Prologis lodged a non-determination appeal, LBC resolved on 7 July 2004 that it would have refused planning permission if the appeal had not been lodged and Prologis formally withdrew the earlier application. This left a limited amount of time for LBC and JetSave to prepare their evidence. On LBC’s part, no senior officer was willing or able to be LBC’s principal planning witness at the enquiry and to defend LBC’s opposition to the application. Ultimately, Mr Whiteside was asked to fulfil this role but he declined on the understandable basis that he was not suitably qualified or senior enough to fulfil that role. Mr Whiteside was then informed that he should prepare the proof of evidence for a senior planning officer, Mr Rory Macleod, who would appear as LBC’s principal planning witness on the basis of that proof. Soon afterwards, Counsellor Godfrey emailed Mr Whiteside on his return from holiday on 22 September 2004 and asked what needed to be done in relation to the opposition to the application at the appeal. Mr Whiteside emailed back:

“Sorry not to have rung you earlier but I’ve been waiting for a steer from ‘management’ on whether I’d be assisting with the Council’s Proof of Evidence or JetSet’s. AS usual, the steer never came and so I’ve assumed an (undercover) co-ordinating role for JetSet.”

This exchange occurred two days after Mr Whiteside had returned to work following the second of his three bouts of stress-related illness in 2004. Very little was achieved by LBC in the following few days to support JetSet and Mr Whiteside was too busy finalising LBC’s proofs of evidence. Mr Whiteside then went off permanently sick and Mr Suttie found that all co-ordination, assistance and support from LBC then dried up as these contemporaneous extracts from his diary for 20 October 2004 reveal:

“I phoned LBC to try and get some direction re Prologis’ appeal. … got through to Andrew [Beedham]. He seemed rather frustrated. I asked for further consultation and advice prior to Prologis Planning Committee meetings. … He seems to assume things I have no clarity about. I’m rather left in the lurch. I understand that I am to liaise with people within his department, not just Steve, and I should feel confident to do this. We had several meetings to this effect previously and Andrew was present at at least one of these so I don’t know why he seemed surprised that I contacted him. I told Andrew that I needed continued liaison with his department re the Prologis case and that I wanted to feel confident that Croydon would press the points that we had agreed that I leave to Croydon to pursue during the appeal process. If Croydon backs off now, the whole case will be weakened and my case will have been effectively compromised. … Andrew then said something that really stumped me. He said he hadn’t seen all the evidence regarding Prologis (how can that be, we’re fighting this together)? … He then said something that left me confused and a little cold. He said “It may be that Croydon won’t be able to help me further with the Prologis case!” This is very serious and I’m beginning to really worry about how the Department [UDD] will view this whole affair in Steve Whiteside’s absence. … Much of Croydon’s case has been formulated in tandem with what I had clearly led to believe was Croydon’s own aspirations re a successful outcome for this case i.e. refusal to grant permission to Prologis. I’m beginning to feel duped and possibly very exposed.

This contemporaneous note of Councillor Godfrey’s views shows the pressures that Mr Whiteside must have been working under just before his third and final illness in 2004. He was clearly bearing the brunt of preparing both Croydon and JetSave’s evidence, he was in the middle of a conflict between those who wished Prologis to succeed in the appeal and those, who were in the minority, who wished to promote LBC’s clear policy that the appeal should be dismissed. He was receiving no help or steer from management as to what he should be doing and how he should be doing it and he was faced with no managerial assistance or support from his line manager. Finally, he was having to work in conditions which, he felt, put him into the position of feeling that he was working undercover against LBC’s support of Prologis’ appeal in order to support JetSave’s case whilst, at the same time, preparing evidence for LBC to enable it to “lose” the appeal they were on the surface seeking to win.

As it turned out, LBC was in the insuperable difficulty that it was not possible to deculvert the River Wandle at the points where it travelled under the appeal site save at prohibitive cost. This is clear from the Inspector’s appeal decision, the relevant part of which reads as follows:

“I conclude that … the evidence before me demonstrates that (a) deculverting would itself lead to a loss of employment land, (b) the costs of deculverting would be such as to render development of this ex-contaminated site unviable. Consequently the case for deculverting does not justify refusal of planning permission. The development would comply with the Development Plan, including the London Plan read as a whole.”

In the months leading up to his final breakdown, and in addition to his work on the Prologis appeal, Mr Whiteside was inundated with much other work. He worked on the South Wandle Access Study and Development Framework, the Coulsdon Area Action Plan, LBC’s “New for Old” programme, work with LBC’s Asset Management Group, the new IT rollout and on new office layouts. He was also be given a proportion of all new work tasks coming into the UDD from outside. In addition, he was heavily involved in discussions about the new management structure for the UDD that Mr Beedham was attempting to introduce.

It is clear that Mr Whiteside was working excessive hours in 2004. His timesheets show that he was working on average a full working week. However, he was allowed to work at home and the timesheets do not fully record, because he was not required to record, the hours worked at home. He was working most evenings and for much of the weekend in addition to his weekday working hours. This additional work largely arose to enable him to meet all the additional Prologis appeal work that had landed with him by default whilst maintaining all his long and short term UDD work commitments.

Mr Whiteside has had three separate depressive episodes during his adult life. The first was in 1982. He was suffering from pains over his eyes and chest pains which were not related to any ascertainable physical problems. He was experiencing fluctuating depressive episodes and was also experiencing anxiety. He was referred to a consultant psychiatrist who reported back to Mr Whiteside’s General Practitioner in a letter dated 9 August 1982 in these terms:

“… for as long as he can remember, he has been described as a fairly highly strung chap but, in addition to that, over the last few years at least, he has been aware of significant mood shifts – sometimes feeling quite depressed and at other times feeling relatively normal. … He as had a fluctuating and typical affective disorder for some time and in view of the fact that the depressive aspect of it is certainly more apparent than any elation aspect, I thought the wisest thing was to try him on an M.O.A.T. in the first instance, partly as a therapeutical exercise to see if it does have a good effect and I have put him on some Parstelin … if this does not help him, it could be that Lithium might be more appropriate.”

The episode was relatively short lived and was associated with a stressful period of his life that involved his living and working in Croydon during the week and in travelling to and from Manchester to be with his wife and son at week ends.

The second depressive episode occurred in 1999. Mr Whiteside broke down whilst at home in May 1999. He was off work from 19 May until the end of July. The breakdown was diagnosed as being stress related, particularly associated with his work and working long hours although marital difficulties may also have contributed to the stress build-up. It showed itself by his early morning wakings and by variable confidence, concentration and mood with occasional tearfulness Before he returned to work, he was seen by LBC’s then medical advisor, Dr Nawroki who informed LBC’s personnel and training manager in an internal memorandum dated 23 July 1999:

“He was not sure if he would develop an anxiety attack if he entered Taberner House. Hopefully he will be able to enter, but I devised a plan for him on his return from holiday. He has seen … a counsellor recommended by our section and he found this useful. However, he still has difficulty concentrating on multiple problems, and feels that when he returns to work, he will need to be given single, specific tasks to cope with.

… I recommend that … after 3 – 4 weeks, I think he will be able to return to full-time work, but I think that he will need to discuss work with his seniors prior to commencing project, so that he knows as much as possible about it, with direct lines of communication.

I believe that he has an organisational problem rather than a medical one.”

Mr Beedham discussed with Mr Whiteside when he returned to work how his working arrangements could be organised so as to help him to reduce his work-related stress levels and to keep them at an acceptable level. It was agreed that Mr Whiteside would work four days per week for LBC and a fifth day working at home on his own private work. This would enable him to re-establish his confidence and commitment to landscape design. It was recognised by Mr Beedham that Mr Whiteside should not work in the way he was working before this episode, that is in an unstructured way for long hours without any clear direction. In a memorandum that he sent to Mr Whiteside on 15 September 1999, he stated:

“These revised working arrangements are intended to help you reduce your stress levels and improve your morale, confidence and attitude to working for the Council.”

The third depressive episode, being three related but successive episodes, which led to his ceasing work for LBC, occurred in October 2004. This had been preceded by two earlier short periods when Mr Whiteside was absent from work through illness. That is why there are three separate episodes to consider.

The first of this group of episodes followed a particularly stressful period at work and it occurred when Mr Whiteside was away between 10 and 12 May 2004. The outward signs of his stress-related illness were a cold, sore throat and general aches and pains. However, he had a Return to Work meeting with Mr Beedham during which he explained that he had felt stressed in the period preceding his short sick period. With Mr Beedham’s knowledge, Mr Whiteside filled in the relevant section of the Self Certification Return to Work Form as follows:

The second of this group of episodes occurred between 14 and 20 September 2004, again following a particularly stressful period at work. Mr Whiteside was suffering from severe headaches and mental exhaustion which he attributed to stress at work and to on-going work-related issues on the Return to Work Form. Mr Whiteside met the Occupational Health Nurse on 23 September 2004 on his return and her notes record that he told her that he had had a previous period of stress in 1999 – 2000 when he was off work for three months. He also informed her that he was working on a difficult project, which was clearly a reference to his involvement in the Prologis planning appeal. This work was proving very difficult to complete. He felt that he was being made a “scapegoat” and that he had no support from management or personnel. He referred to his difficult personal circumstances over the past few years which were now resolving themselves. His current stress was caused by management and organisational issues at work. He intended to approach the Personnel Department at the end of the project about his issues and concerns. In view of his need to complete his current project, he was unwilling to see his General Practitioner at the present time. Mr Whiteside stated that Ms Aslett told him that the Occupational Health department could not intervene on his behalf since his issues appeared to be related to management issues and therefore the Human Resources department had first to refer him to the Occupational Health department.

Because the Occupational Health department had advised Mr Whiteside that he needed to take up his concerns that management issues were causing him undue stress with the Human Resources Department, he arranged to meet a member of the Human Resources Department, Ms O’Flaherty on 4 October 2004. She wrote the following full file note after this meeting which I consider to have been a fair, full and accurate summary of their discussion:

“Steve came to see me today as he has recently been to see Occupational Health due to stress issues. Head what he terms a ‘breakdown’ in 1999, and feels that the symptoms are developing once more.

Feels he and the Department are being ‘left to float’, with no clear direction. In ’99 he felt same, was drive to breakdown, went sick and was given a phased return to work with a monitored work load. Has recently been off sick due to stress both inside and outside of the work place, but feels work is definitely a big contributing factor.

Steve spoke to Andrew Beedham during his return to work interview and told him could not take any more as was near to breaking point –Andrew has now gone off sick and has been signed of for 2 weeks – again with stress. This has impacted heavily on Steve and Eimear . Apparently, Eimear [Murphy] has been to see Occ[upational] Health today (although have no evidence at this stage).

Both Steve and Eimear spoke to Ian Sim this morning about coping in Andrew [Beedham]’s absence, the meeting was not a success according to Steve, who felt that Iain was no help at all. Has made him feel worse – totally unsupported.

Steve feels there is a lot of inaction or non-decision making from senior management wo do not understand/empathise with the situation in Urban Design. This renders Andrew inactive, he feels that too much work and also mismanagement are to blame for the way he and others within the Department feel.

In working on an inquiry ‘Prologis’ – Andrew no longer in the Office, therefore needs to complete on own by tomorrow. Has been working on this all weekend, as well as seeing son off to University on Saturday. Needs to work uninterrupted in order to finish on time, too pressurised, but can do it if allowed to concentrate.

Has had marriage break up and divorce to cope with. Had to bring up his son on own, has seen him through GCSEs, went off to Uni on Saturday. The situation upstairs and the Inquiry are tipping him over the edge.

Preferred outcome – needs space ‘black hole’ in which to disappear and think about himself, for himself. Both life and work are too pressurised for him to cope with. Needs definition of projects with realistic timescales and clear direction. Does not want to go off sick as this lets people down, but thinks he’s close to the edge. Used to get by with small successes, but these are not enough – the Department should succeed as a whole.

Action – [Margaret O’Flaherty] will email Occupational Health to see whether there is anything we should know, or do. Advised Steve if felt that unwell should see GP. Asked him to sign consent form in case Occupational Health want to speak to GP. Told him to see Iain Sim and explain how he felt and that he needed to work from Home to finish inquiry report. Steve said he could not face Iain again today, so told him to send a timely email, ensuring that Iain was OK with him working at home, in Andrew’s absence and also to mention the fact that this had been discussed and agreed with Eimear this morning. Also told him to get Iain to agree to his taking Wednesday off in lieu of the extra hours he has put in on the Prologis inquiry. Margaret O’Flaherty to await reply from Occupational Health and speak to Steve again on Thursday/Friday.”

Ms O’Flaherty sent an email to Dr Lucy Goundry in the Occupational Health department immediately after her meeting with Mr Whiteside on the same day. The salient parts of the email read:

“Steve Whiteside from Urban Design has been down to see me this morning. He informed me that he had been to see you at some point last week.

He feels he is suffering from Stress, not just in the workplace, as there are home issues, but there are a number of work factors that are heavily contributing to this state. His Line Manager (Andrew Beedham) has recently been to see you due to related matters and is now away sick, which is putting more pressure on Steve, who seemed overly reflective today, and not able to focus.

He has already suffered what he terms a breakdown in 1999 and says that he recognises the signs. I have not had a lot of interaction with Steve in the past, so was not able to compare his appearance/actions against better times, but I do feel concerned about his general wellbeing.

I have asked him to complete a Medical Consent form, which I am sending to you. Although he was not referred through the normal channels, was there anything that came to light during his meeting with you that you think we should be aware of? In the light of my meeting today, do you think we need to refer him properly?

He will be working form Home this afternoon and tomorrow in order to complete a particular project and may claim some time in lieu on Wednesday to rest. I have told him that if he continues to feel unwell, he should visit his GP, which he says he will do as soon as possible.

Your advice would be appreciated.”

The only follow up from Occupational Health that has been disclosed in a letter from Ms Aslett to Mr Whiteside’s General Practitioner asking that that GP should see Mr Whiteside and confirm his medical problems. The letter was dated 14 October 2004. By the time it was received, Mr Whiteside had already been to see the GP, a visit that he made on 11 October 2004 and Dr McCrea was able to respond to Ms Aslett’s letter by reporting on that visit, which had led to his being signed off work sick with immediate effect. The report, dated 19 October 2009, read as follows:

“I saw Stephen on 11 October when he complained of anxiety and panic attacks. After some discussion it was apparent that he felt that the amount of work that was being pushed his way in his department was causing his problems. He felt he could not go on under the present circumstances at work. I gather that a number of other employees have gone off with stress and he does not feel he has been given any extra resources to cope with the increased workload. … He does not have any other disabilities or health concerns that would affect his attendance at work. He has declined any medication at present and would prefer a recuperative period at home. I have signed him off and will be reviewing him in a fortnight.

Mr Whiteside never returned to work.

There did not appear to be any written identification of the role of, or the strategies and policies to be followed by, the UDD until a draft paper was prepared in early 2004 within the UDD for the purpose of focusing discussion as to how the management of the UDD could be improved. From this paper, it would seen that the mission statement for the UDD was to put that Department at the centre of LBC’s urban regeneration process and to make the UDD a rewarding place to work in by producing quality outputs. This strategy would be undertaken by producing relevant designs, by assisting others in the formulation of general and particular policies, strategies and methods of implementation of this mission statement.

What emerged from the evidence was that the UDD was, in effect, a department that provided consultancy services to the Planning and Transportation Department and to LBC more generally. These services were required to assist the defendant to promote its overall policies intended to improve both the urban and natural environment. The UDD were therefore involved in a wide variety of the work of the Planning and Transportation Department and it was called in to assist in the provision and promotion of planning and environmental policies, the planning and design of projects of all sizes in which LBC was involved, the promotion and support of external schemes to improve the environment including conservation and open space improvement and approving and improving development schemes submitted for approval. Mr Sim estimated that only about 20% of the work of UDD was involved with private planning applications in the period 2000 – 2004. The UDD had a range of skills with which to provide its advice, much of which was provided in the form of sketches, drawings and memoranda. These can be loosely described as skills of landscape and urban design.

The job content at Mr Whiteside’s appointment, which was never updated or changed, described his work as including:

To prepare town centre and district centre plans.

To prepare planning briefs for major development sites.

To prepare schemes for other sensitive areas.

To prepare feasibility studies/sketch schemes/development briefs for the development of surplus Council-owned land prior to disposal.

To prepare physical development and conservation policies for inclusion in the Unitary Development Plan and other policy documents.

To prepare landscaping and environmental treatment projects included in the Council’s capital programme.

To prepare guidance notes and promotional material and organise exhibitions.

To promote adequate advice to the Planning Control Division in planning applications and other proposals.

To liaise and negotiate with private architects on design issues relating to major applications and proposals.

To propose practical improvements, treatments, street furniture etc., under the general heading of “natural choice”.

To liaise with amenity groups, particularly with regard to conservation and historic buildings, and to prepare improvement schemes for conservation areas.”

This job description, involving a very wide range of functions, tasks and skills, reflects the work of the UDD. The functions of the UDD had not changed significantly from its inception until 2004 when Mr Whiteside had his breakdown and ceased working in the UDD. What is clear from the evidence is that Mr Whiteside was recruited as a landscape designer but in the years leading up to his final health breakdown, he was required to undertake less and less landscape designing and more and more tasks related to project management, co-ordination, transportation, planning control and departmental administration. Many of these tasks were ones that he had had no previous training or experience although he did, on his own initiative, undertake some management training in 2002. His job was never subject to any evaluation and the regular working in areas outside his expertise was one of the ever-growing sources of stress that he was subjected to in the years after 2000.

The management and supervision of the work of the UDD and of those working in the UDD was very loose and diffuse. The small department was divided up into two groups. Mr Whiteside was the principal landscape architect leading that group and, from about 2002, Ms Eimear Murphy was the principal urban designer leading that group. Both of them had three professionals working under them for whom they acted as line manager. There were six additional professionals within the UDD. Both of the group leaders were line managed by Mr Beedham who, in turn was line managed by Mr Sim who did not work in the UDD. There was no obvious means of controlling the work coming into the UDD, of defining what input would be provided by UDD for any particular project or piece of work or for identifying the strategies to be pursued and the resources to be utilised in relation to any piece of work. This lack of definition was in clear conflict with LBC policy formulated in April 2003 whereby each department should defined aims and objectives setting out what that department was attempting to achieve and how to achieve it. The work was distributed to the two team leaders by Mr Beedham who would identify any particular piece of work that he should undertake and only keep a somewhat remote eye on the remaining work.

Clearly, this somewhat loosely structured management was in need of change and improvement but little had been achieved within the UDD by the time Mr Whiteside left. He was frequently drawing to the attention of senior management the difficulties and risks to health and good internal working relations that the unstructured management arrangements within the UDD continued to create. LBC had, well before 2004, implemented general policies for improved management in each department. These policies were intended to operate within each department and departmental managers were intended to ensure that these policies were introduced and effectively operated for each employee in that department.

Within the UDD, therefore, the relevant manager should have provided one-to-one supervision by adopting LBC’s recommended framework which involved regular discussion, recording and review during which the performance of the professional concerned would be reviewed and appropriate support provided. This should have been supplemented by feedback and professional development. Appropriate records should have been maintained. Were appropriate, job evaluations and re-evaluations should have taken place and any necessary changes to the working arrangements and environment should have been effected to take account of changed working requirements of the particular job. These policies should have been supported by the introduction of Health and Safety policies, particularly related to stress, risk assessments of health matters, sickness procedures and anti-harassment and anti-bullying policies.

Few of these policies had been introduced into the UDD by the time that Mr Whiteside left. The job reviews were wholly ineffective, no proper general risk assessments had been undertaken and no specific risk assessments of Mr Whiteside were ever undertaken, there was little or no management of the work loads and work distribution and no attention paid to the often stressful working conditions and their concomitant, harassing and bullying tendencies of particular members of staff directed to other members of staff. Although LBC was committed to introducing the Prince method of project management, no effective start had been made within the UDD to begin the implementation of a suitably adapted Prince package by the time Mr Whiteside left LBC.

Many of these problems were recognised in the paper entitled “Urban Design Review 2004” which was drafted by Mr Beedham and which was intended to stimulate discussion and produce significant improvements in the management structure and the management of resources within the UDD. It was, indeed, a belated start on seeking to implement for the LBC the various management policies that LBC had introduced in previous years. The paper recognised the need to make UDD a better and more rewarding place for staff to work in, to improve morale, commitment and job satisfaction, to clarify and define the identity, role and functions of UDD, to become less reactive and more proactive, to prioritise, to decline inappropriate work and to clarify roles and responsibilities to ensure that delegation works. The paper recognised the failure to make any progress in the raft of project and office management actions previously identified. This was a recognition that the UDD had made little progress in advancing the various relevant policies introduced by LBC. This was stated to be a failing throughout the PTD. This review concluded with the suggestion that the existing team structure had failed to deliver on changing both processes and procedures primarily because insufficient staff time had been dedicated to these tasks.

It was clear from the evidence that working relations within the UDD were very poor. For many years, the department used to socialise together, usually in a local public house after work. This was particularly true of Mr Whiteside and Mr Beedham but by 2003 there was little out of hours socialising amongst the staff. Mr Whiteside and Mr Beedham’s relationship had deteriorated to the point where they only communicated on work-related matters. Remarkably, Mr Beedham claimed in evidence that he felt bullied and intimidated by Mr Whiteside and had signed a number of documents which were supportive of Mr Whiteside’s case because he felt threatened and merely signed them because they had been put in front of him by Mr Whiteside. There had been no suggestion of such behaviour directed towards Mr Beedham prior to his giving evidence in the witness box and I do not accept it. Equally, Mr Beedham stated in evidence that those line managed by Mr Whiteside felt intimidated by him. This suggestion too was new and undocumented. I do not accept this evidence either. I am satisfied that Mr Beedham resorted to this evidence because of his evident and deeply held antipathy towards Mr Whiteside. It was instructive to examine why these two competent, hardworking and capable professionals, who joined UDD together in 1990 and who had been good friends for many years obviously fell out. The evidence suggests that this falling out is directly associated with the difficult working conditions that both were subjected to. Both were, for many years, at one in their criticisms of senior management, particularly the lack of direction or support or interest that the UDD received. Both had become exasperated in the lack of any response to their complaints about these matters, particularly through the job review process. Both also were affected by the intense pressure created by the volume of work and the general disapproval experienced from most of those that UDD worked with. UDD was regarded as being an awkward irrelevance by most other parts of the PTD.

The two men reacted to this unhappy working environment in different ways. Mr Whiteside remained doggedly insistent on raising his complaints and concerns and in pursuing his grievances with those he came into contact with. Mr Beedham adopted a laissez-faire approach to life. He considered that nothing would change so he was prepared to work his way round the difficulties created, usually be ignoring them. Thus, every contact with Mr Beedham amounted to an unwelcome reality check. It was this repeated experience which became, in his mind, bullying and intimidation whereas it was, at worst, behaviour amounting to repeated and annoying reminders of his situation.

There were, however, clear instances of intimidation and bullying. Mr Whiteside gave evidence that cliques developed in the office and referred to two members of staff who had been bullied by such cliques. A particularly bad example was that of Ms Murphy who was driven to tears on occasion. This unhappy atmosphere was not addressed by UDD management.

It is particularly regrettable that there never appeared to be any adherence to the detailed guidance provided for the identification and elimination of bullying, intimidation and poor inter-personal relationships within the UDD. In particular, LBC had implemented a detailed Dignity at Work policy covering all forms of bullying, harassment and anti-social behaviour. The policy statement committed LBC to the creation of a working environment in which everyone had the right to be treated with respect and dignity and to follow clear standards of behaviour. The policy provided clear and helpful advice as to how any such behaviour could and should be addressed in informal ways which management were expected to promote. In extreme situations, which it was envisaged would rarely arise if the policy was fully implemented, a formal bullying complaints procedure was provided for. There appears to have been no, or no meaningful, implementation of this policy within the UDD. This was as a result of a lack of guidance from senior management and because the cliques and poor treatment of others arose as a result of adverse reactions to the working conditions being experienced.

The PTD had in place detailed Health and Safety policies which were coupled with a policy of undertaking regular risk assessments of the working environment and, where appropriate of the risk of work-related illness arising for particularly vulnerable employees from the working environment. These policies were extended to the identification and elimination or amelioration of stressful working conditions. Departmental risk assessments were undertaken within the UDD on two occasions in the period with which I am concerned. The procedure was for the Departmental Safety Advisor to prepare a stress and General Office risk assessment and for these to be considered and, if necessary adapted, in discussion with the employees affected by those particular assessments. The intention was that risks would be identified and the risk factors giving rise to any appreciable risk would then be reduced or eliminated. The policy of undertaking risk assessments was introduced in 2002 and the UDD was provided with risk assessments in September 2002 and March 2003. The relevant assessment, that of stress, yielded a low/medium assessment following the first assessment and a medium assessment following the second.

The following risk factors were being assessed:

“Nervous break downs, depression, low morale, low self esteem, poor concentration, panic attacks, lack of control, irritability, nausea, headaches, migraines, anxiety, anger, high level of accidents, sickness, and absences, long term illness.”

A medium assessed risk, as was provided in March 2003, required additional control measures to be complied with within four weeks.

Following the receipt of these assessments, Mr Whiteside provided his comments and returned them to Mr Beedham. However, nothing further was done either to check the assessment or to identify and work towards the eradication of the identified risk factors. Given the significant incidence of virtually all of these risk factors amongst most members of the UDD, urgent steps should have been taken to improve the health and to reduce the risk of health breakdown within that department. Furthermore, Regulation 3 of the Health and Safety at Work Regulations (1999) requires employers to assess the risks to workers and any others affected by the undertaking and to record any significant findings. However, nothing was done, certainly in Mr Whiteside’s remaining time in the department.

Allied to these general risk assessments were, or should have been, specific risk assessments of Mr Whiteside. Following his breakdown and return to work in 2000, he should have been provided with an occupational health risk assessment on a regular basis of the risk factors associated with his stress levels. LBC had been advised that his psychiatric health was placed at risk by enhanced stress levels which were themselves at risk as a result of organisational problems associated with Mr Whiteside’s health. Regrettably, no stress risk assessment was ever carried out for Mr Whiteside.

LBC’s annual appraisals or job reviews were intended to play an integral part of the process of effective one-to-one person management, quality of work enhancement and health and safety monitoring. The job review was intended to review what had been achieved in the previous year, what were the objectives for the forthcoming year and what support was to be provided by managers and supervisors in the future. The job review was first filled in by the person being reviewed, the completed form was then discussed with the line manager and the agreed form was then to be signed off by both participants before being forwarded to the departmental manager. In the case of Mr Whiteside, his reviews were undertaken with Mr Beedham who then forwarded them to Mr Sims.

It is a remarkable fact that each of the five job reviews undertaken between 2000 and 2004 contained detailed and repeated complaints by Mr Whiteside about lack of management direction and support, about the risk to his health arising from his working conditions, about conflicts and poor morale within the UDD and about the difficulties of completing satisfactorily many of the tasks assigned to Mr Whiteside due to a lack of departmental strategy and policies. None of these reviews was signed off, none raised with Mr Whiteside by Mr Sims and none appeared to influence or affect the work and working conditions provided for Mr Whiteside in the ensuing year. Each was, in effect, a whistling into the wind.

Mr Beedham explained that in the first three or four of these reviews, his views were very similar to those expressed by Mr Whiteside and he passed on Mr Whiteside’s views along with his own, albeit in less strident language, to Mr Sim. He stopped passing them on because he decided that since nothing would change, he might as well live with what was currently available. He found Mr Whitehouse very difficult to handle in these review sessions because of his insistent and prolonged lectures on the relevant topics. He did not sign off the reviews because there seemed little point and, in any case, there was no prospect of senior management taking any notice. Mr Sim explained that he decided that it would be a waste of his time to speak to Mr Whiteside. He was so busy, he preferred to pass on his views to Mr Beedham. These views were, in effect, that Mr Whiteside was complaining for the sake of it and should simply get on with his work and stop making trouble and wasting the time of senior management.

The repeated failure to consider or address these reviews caused Mr Whiteside continuous and increasing unhappiness and tension. There was no satisfactory explanation for the complete breakdown of the review process as it affected Mr Whiteside and this breakdown had much to do with Mr Whiteside’s unhappiness with his working environment and with his perception that senior management had little respect for him or for the work he was doing. This was particularly striking since, as Mr Sim acknowledged several times during his evidence, there were no complaints, and several plaudits, about the quality of Mr Whiteside’s work and his consistent commitment to that work and to promoting LBC’s various policies with which he was involved.

It was particularly striking that in late 2004, all three senior managers within the UDD, a very small department, had stress-related breakdowns or illness. Mr Beedham had a breakdown in October 2004 which he attributed to over-work and work-related stress. Ms Murphy had periods of illness at that time and, according to Mr Whiteside, was suffering from the effects of stress which was work-related. She left LBC’s employment early in 2005 and Mr Whiteside stated that she declined to give evidence for him because she could not bear to think about or be reminded about her time within the UDD. Mr Sim sought to denigrate Ms Murphy and to explain her departure as being a hasty voluntary resignation to avoid possible disciplinary action arising from her misuse of the permission she had to undertake some private commissions away from LBC. However, there was no evidence of any such misconduct in the papers or of any suggestion that her departure was for other than health reasons and I am satisfied that she did suffer from stress-related illness in late 2004 which was directly responsible for her sudden departure a few weeks later. Finally, Mr Whiteside had a complete breakdown at the same time having had two earlier work-related stress inducing bouts of illness in 2004.

LBC suggested that Mr Whiteside’s ill-health was caused or contributed to by his marital and other family problems. There was, however, no evidence of this. Mr Whiteside’s divorce in 2002 was amicable and relatively stress-free. Mr Whiteside’s sister was able to confirm that this was so. Mr Whiteside continued to live in his former matrimonial home with his son then in his late teens and that family life was quiet but harmonious. Equally, there were no indications of any other cause of his breakdowns in 2004.

Employment Tribunal Findings

The Employment Tribunal was concerned with Mr Whiteside’s claim that he had been constructively dismissed. That required him to establish that LBC had, by its conduct repudiated its contract of employment with Mr Whiteside such as to force him to resign. The claim failed. The Employment Tribunal found that LBC had not repudiated the employment contract and had evinced its intention to maintain that contract by making some effort to introduce project management systems and to persuade Mr Whiteside to take a more pragmatic approach to the problems within the UDD.

The Employment Tribunal did, however, make a number of very critical comments about LBC’s conduct that were relevant and supportive of Mr Whiteside’s present claim. In particular, the Tribunal decision noted:

It follows that the Employment Tribunal’s findings do not create any form of issue or fact estoppel. The issue for decision was different to the issues for decision in this case. Furthermore, insofar as findings relevant to the issues in this case were made, and they were made without much of the evidence adduced in this trial being considered, those findings are supportive of Mr Whiteside’s case.

Relevant Law

There have been many reported decisions in recent years that address the question of when and in what circumstances an employer. The basis upon which a claim for damages for work-related physical or psychiatric injuries may succeed were it is contended that those injures have been caused by a breach of an employer’s duty of care to its employee was authoritatively set out by Hale LJ, in delivering the judgment of the Court, in Sutherland v Hatton (Footnote: ¹). These principles are summarised as follows (Footnote: ²):

The Issues

Did Mr Whiteside suffer a psychiatric injury

The evidence of the two psychiatrists may be summarised in this way:

It follows from this evidence that Mr Whiteside was certified as being unfit for work in October 2004 as a result of his suffering from a major depressive disorder which was recurrent. The only significant issue associated with this injury is whether it was substantially triggered, by his work and working conditions as opposed to some other factor or by its recurrent potential due to his underlying susceptibility to this disorder.

The two psychiatrists agreed, in their joint statement, that the cause of major depressive disorder is overwhelmingly biological. Episodes may be triggered by life events but as the disease progresses, it becomes more likely that episodes will arise without any trigger. In Mr Whiteside’s particular case, his paranoid personality may be associated with episodes of depression.

Both experts agreed that stress could act as a trigger for a recurrence of the major depressive disorder suffered by Mr Whiteside and that each recurrence was likely to be more severe than its predecessors. Dr Murray expressed her opinion prior to the trial that work stress was the most significant factor in triggering the illness although personal circumstances were also in play. Having heard the evidence, Dr Murray was clearer that work stress had triggered this episode. This refining, or clarification, of her views was because of what was, to her, the very striking nature of the work-related potential triggers. Mr Whiteside is particularly susceptible to disappointment and his personality is such that he bottles up his feelings. He is also susceptible to stress even though this is not exclusively the trigger to a recurrence of his depressive disorder. There was no evidence that she had heard that suggested that home-based influences had contributed to, or increased the risk of, his recurrence. Mr Whiteside had been very heavily involved in the Prologis appeal, he “owned it”, and any disappointment coupled with increased pressures and stress-inducing working conditions, greatly increased the risk of a recurrence. Dr Reveley, although more circumspect in her written opinion as to the cause or trigger of the recurrence, stated in her oral evidence that she agreed with the entirety of Dr Murray’s evidence.

On behalf of LBC, it was contended that the cause of the recurrence was Mr Whiteside’s inherent constitutional make-up and his decision to avoid medical help. However, Mr Whiteside had frequently raised the need for external work-related stresses to be reduced. The need to access medical help can only arise when he has reason to consider that his health is suffering. In May 2004, after his three-day absence following the first, initial, signs of a recurrence, he advised Mr Beedham, who agreed, that ineffective working practices and lack of clear direction and priorities were having a detrimental impact on staff health. It did not occur to Mr Beedham to refer Mr Whiteside to the occupational health department or the medical advisor. Mr Beedham did access health advice in September and October 2004 but, by then it is now clear that the recurrence was already occurring. It is unfortunate that the Human Resources and Occupational Health departments did not react immediately and put Mr Whiteside off work forthwith following his meeting with the Occupational Nurse on 23 September 2004. Had the nurse been in possession of appropriate risk assessments of Mr Whiteside’s health and stress susceptibility, as she should have been had LBC as an employer fulfilled its statutory duties with regard to Mr Whiteside, she would have ensured that Mr Whiteside cease work and access psychiatric help there and then. It is at least possible that such steps would have led to a significantly less intense recurrence.

What is clear is that the risk of a triggering event occurring and a triggered recurrence resulting in consequence had been raised very considerably in the period prior to Mr Whiteside’s breakdown in October 2004. The starting point was the stark fact that the three principals within the UDD all appeared to have had stress-related illness at about the same time in and soon after October 2004. Moreover working conditions had become intolerable for Mr Whiteside as a result of the pressures created by the Prologis appeal which added to the already very severe pressures created by the working environment. The growing realisation that the Prologis appeal would be “lost” added what was probably the final dimension and the intense disappointment, feelings of inadequacy, lack of support, anger at the reactions of work colleagues and loss of self respect coupled with the excessive working hours being put in all contributed to the creation of a situation in which a recurrence was not merely probable but almost certain.

Given all these circumstances, the evidence shows that the risk of a recurrence had been raised to such an extent by work-related pressures that they can be seen to have caused the recurrence.

The evidence is overwhelming that Mr Whiteside’s recurrent illness was foreseeable and that it was also foreseeable that the working conditions he was subjected to would lead to psychiatric injury. Since his return to work in 2000, it was foreseeable that Mr Whiteside needed to work in as stress-free environment as was possible and need to be provided with clear goals and well-managed priorities. He needed encouragement and, possibly, further training to undertake work outside the landscape design field and he needed to feel wanted, worthwhile and secure. All this was known to LBC, particularly Mr Sim and Mr Beedham from late 1999 onwards. Mr Beedham was warning Mr Sim and the Personnel and Training Manager as early as February 2000 that his work pattern was already sliding back to the dangerous conditions that had triggered his May 1999 recurrence yet nothing was done. At every job review, Mr Whiteside was warning that stress levels within the UDD were unacceptable due to the catalogue of reasonable complaints about the management of the department, management structures within the department and the working conditions he was being subjected to. However, nothing was done and his views and reports were continuously ignored. No action was taken following the 2003 stress risk assessment, no risk assessments were ever carried out for Mr Whiteside, nothing was done to reduce the intolerable working conditions within the UDD and all warning signs were ignored. Mr Whiteside has established that his injury was foreseeable.

The various management failures that have been identified in this judgment culminating in the complete mishandling of the Prologis appeal and Mr Whiteside’s role in that appeal are cumulatively and individually clear breaches of LBC’s contractual duty to take all reasonable steps to protect the health and safety of Mr Whiteside. The unacceptable stressful conditions that Mr Whiteside was subjected to for at least two years prior to his recurrent illness were all caused by a catalogue of breaches by LBC of this duty.

Had Mr Whiteside not been subjected to unacceptable stress levels and working conditions over that period of at least two years, the evidence suggests that his risk of a naturally occurring depressive illness would have been significantly reduced. On a balance of probabilities, he would not have incurred any, or any significant psychiatric illness when he did had LBC taken appropriate and reasonable steps to avoid the breaches.

LBC’s Liability

LBC is liable in breach of contract to pay damages for breach of contract for having caused the trigger for the recurrent psychiatric depressive disorder that occurred in October 2004 as well as the two further incidents of ill-health in 2004. All loss and damage reasonably and naturally flowing from that disorder is recoverable but has yet to be established. There will be judgment for liability with damages to be assessed.