Cowgill v Lowestoft College

An employer’s duty to take steps to protect an employee from stress-related harm is triggered only where indications of impending harm are sufficiently plain that a reasonable employer should realise that action is required. No duty arises to make searching and extensive inquiries in the absence of such indications.

An appellate court should not interfere with a trial judge’s selective acceptance of evidence where the findings are open on the evidence and supported by contemporaneous documentation. Judicial intervention during a trial does not establish apparent bias unless it demonstrates a closed mind, partisan conduct, or prevents a party from presenting its case.

The applicant sought permission to appeal from a decision of Her Honour Judge Plumstead in Norwich County Court concerning a claim for psychiatric injury allegedly caused by stress at work. The judge found that the college had sufficient institutional knowledge of the applicant’s earlier stress-related illness to satisfy the threshold identified in Sutherland v Hatton, but rejected his evidence that he had made the danger to his health clear in 1997.

The applicant challenged the judge’s assessment of the evidence and alleged excessive and partisan judicial intervention during the trial. The renewed application required the Court of Appeal to decide whether there was any arguable ground with a reasonable prospect of success.

1. Application refused. There was no arguable ground of appeal with reasonable prospects of success.
2. The court applied the principle stated in Sutherland v Hatton [2002] EWCA Civ 76: indications of impending harm to health from workplace stress must be sufficiently plain for a reasonable employer to realise that action should be taken. The employer is not required to make searching and extensive inquiries without such indications.
3. The trial judge was entitled to accept the applicant’s evidence about his 1994 illness and disclosures to the college while rejecting his separate evidence about what he said in 1997. Acceptance of the applicant as an honest witness did not require acceptance of every part of his evidence. The judge’s findings were supported, at least in part, by the contemporaneous documentation and could not properly be reopened on appeal.
4. The judge had intervened more frequently than some judges might, but her interventions were principally directed to understanding the evidence and the college’s organisation. They did not show a closed mind, partisan conduct, or prevent either party from presenting its case. The conduct fell substantially short of the intervention or judicial partiality required for appellate intervention.
5. Lord Justice Kennedy agreed, while making clear that the conduct of the trial was not a pattern to be followed in future.

• Court of Appeal (Civil Division): Permission to appeal was refused on the renewed application. Lady Justice Hale had previously refused permission on paper.
• Norwich County Court: Her Honour Judge Plumstead decided the applicant’s workplace stress injury claim in March 2002.