Hatton v Sutherland (Bishop v Baker Refractories Ltd, Jones v Sandwell Metropolitan Borough Council)

Claims for psychiatric illness caused by workplace stress are governed by the ordinary principles of employers’ liability. The threshold question is whether injury to health attributable to work-related stress was reasonably foreseeable in the particular employee. The employer may usually assume that an employee can withstand normal job pressures and take information at face value, but plain indications of impending harm require action.

Breach depends on what reasonable steps the employer could and should have taken, having regard to the risk, seriousness, cost, practicability and effect on others. The employee must prove that the breach materially contributed to the illness. Where several causes exist, liability should ordinarily be apportioned unless the harm is indivisible. Three appeals were allowed and the appeal in Jones was dismissed.

Four employers appealed county-court findings of negligence after their employees developed psychiatric illness associated with workplace stress. Hatton and Barber were teachers, Jones was an administrative assistant at a local-authority training centre, and Bishop was a factory operative.

The county courts awarded damages in each case. The employers challenged liability, and in Hatton and Barber also challenged aspects of damages. The common issue was how the ordinary employer’s duty of care applies where an employee alleges psychiatric illness from the stress of work, particularly the foreseeability of harm, breach, causation, apportionment and quantification.

The Court of Appeal allowed the appeals in Hatton, Barber and Bishop, and dismissed the appeal in Jones.

1. Disposition. The court allowed the employers’ appeals in Hatton, Barber and Bishop, dismissed the appeal in Jones, refused leave to appeal to the House of Lords, and made costs orders as stated in the order.
2. Duty and foreseeability. The ordinary principles of employers’ liability apply to psychiatric illness arising from the stress of doing required work. There are no special control mechanisms of the kind applicable to secondary victims. The threshold question is whether injury to health attributable to workplace stress was reasonably foreseeable in the individual employee. The inquiry is not whether psychiatric injury was foreseeable in a person of ordinary fortitude. There are no occupations intrinsically dangerous to mental health for this purpose.
3. Foreseeability factors. Relevant matters include the nature and extent of the work, whether demands are unreasonable, evidence of harmful stress or sickness among comparable employees, and signs from the employee of impending harm. An employer may generally assume that the employee can withstand normal pressures and may take information at face value without intrusive medical enquiries. The indications must be sufficiently plain for a reasonable employer to realise that action is needed.
4. Breach and causation. Once foreseeability is established, the court must identify what the employer could and should have done. Reasonableness depends on the magnitude and gravity of the risk, the cost and practicability of prevention, the employer’s size, resources and competing obligations, and whether the proposed steps are likely to do good. The employee must prove that the breach caused or materially contributed to the illness; work-related stress alone is insufficient.
5. Damages. Where illness has several extrinsic causes, the court should make a sensible attempt to apportion liability to the extent attributable to the employer’s wrongdoing, unless the harm is truly indivisible. Pre-existing vulnerability and the chance of illness occurring in any event must be reflected in damages.
6. Applications. Hatton’s illness was not reasonably foreseeable on the evidence, and no specific effective breach was identified. Barber’s complaints did not give the school sufficient notice of psychiatric harm, and the evidence did not establish a breach. Jones’s excessive and unreasonable workload, unreasonable response to complaints, and express warnings of harm to health made injury foreseeable; the failure to relieve the demands materially contributed to her illness. Bishop’s employers had no adequate notice of psychiatric illness and no reasonable alternative work to offer.

• Court of Appeal: Appeals from county-court judgments awarding damages for stress-related psychiatric illness. Appeals allowed in Hatton, Barber and Bishop; appeal dismissed in Jones.
• County courts: Damages had been awarded by Liverpool County Court in Hatton, Exeter County Court in Barber, Birmingham County Court in Jones, and Leeds County Court in Bishop.