Barber (Appellant) v. Somerset County Council (Respondents)

An employer must take reasonable care to protect an employee from foreseeable psychiatric injury caused by occupational stress. The employer must act on what it knows or ought reasonably to know about the particular employee. It may usually assume that an employee can withstand normal job pressures and may ordinarily accept what the employee says at face value.

A duty to act arises when indications of impending injury are sufficiently plain. A medically certified absence for stress and depression, followed by repeated disclosures that workload is harming health, may require sympathetic inquiry, reasonable workload reduction and continuing monitoring. Reasonableness depends on the foreseeable risk, the likely effectiveness of precautions, and their cost and inconvenience. The assessment remains fact-sensitive.

Mr Barber, an experienced teacher employed by Somerset County Council, developed a serious depressive illness after a substantial increase in his responsibilities and workload. Following a three-week medically certified absence for stress and depression, he told each member of the school's senior management team that he was struggling to cope. No material assistance was provided, and he suffered a breakdown in November 1996.

Judge Roach in the Exeter County Court found the Council liable and awarded damages exceeding £101,000. The Court of Appeal, in the composite judgment Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1 and [2002] ICR 613, allowed the Council's appeal. It held that the evidence could not sustain a finding of breach and reduced the multiplier for future earnings.

The central issue before the House was whether the Court of Appeal had sufficient grounds to disturb the trial judge's conclusion that the Council had breached its duty of care. The reduction of the multiplier was not challenged.

1. Disposition. By a majority of four to one, the House allowed the appeal. Lord Walker of Gestingthorpe delivered the leading speech, with which Lord Bingham of Cornhill and Lord Steyn agreed. Lord Rodger of Earlsferry agreed that the appeal should be allowed, subject to separate observations. Lord Scott of Foscote dissented.

2. Applicable principles. Per Lord Walker, the Court of Appeal's guidance on psychiatric illness caused by workplace stress was a valuable contribution to the law, although it had no statutory force and every case depended on its facts. Psychiatric injury to a primary victim was not different in principle from physical injury. Its foreseeability was nevertheless more difficult to assess because mental illness commonly resulted from interactions between personality, work and other circumstances.

   The governing standard remained that of the reasonable and prudent employer described in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776. The employer must consider safety in light of what it knows or ought to know and balance the risk and consequences of injury against the effectiveness, cost and inconvenience of precautions.

3. Foreseeability and breach. Per Lord Walker, the case was close to the borderline, but the trial judge had sufficient evidence to find a breach. The duty to act arose in June and July 1996. The school knew that an experienced and conscientious teacher had been absent for three weeks with medically certified stress and depression and had subsequently told all three senior managers that he was unable to cope.

   The managers should have made sympathetic inquiries, consulted the Council's education officials and taken reasonable steps to reduce the workload. Even a modest temporary reduction, combined with support and monitoring, might have made a real difference. If the condition did not improve, more substantial action would have been required. The continuing failure to act caused the breakdown.

4. Appellate intervention. Per Lord Walker, the trial judge had seen and heard the material witnesses and his fact-sensitive conclusion was supported by the evidence. The Court of Appeal had insufficient reason to substitute its assessment. The contrasting facts of Cross v Highlands and Islands Enterprise [2001] IRLR 336, where the employer had reduced responsibilities and maintained contact, did not justify a different conclusion.

5. Lord Rodger's concurrence. Lord Rodger considered aspects of the trial judge's reasoning on effective assistance and causation unsatisfactory, but would not disturb the conclusion because the Council had not properly contested or supported those issues with evidence. He reserved his view on the precise content of a tortious duty to provide workload assistance. That question required fuller examination of the employment contract, sickness provisions and statutory framework.

6. Dissent. Lord Scott agreed with the Court of Appeal's legal guidance but considered that its stress-specific formulation was preferable to the general formulation in Stokes. He regarded an appellate review under Civil Procedure Rules 52.11(1) as permitting substitution of the appellate court's assessment of the appropriate standard of care. In his view the trial judge's standard was too demanding because Mr Barber made no further disclosure during the autumn term.

7. Judge Roach's judgment was restored in the reduced agreed sum of £72,547.02, with interest at the judgment rate from 8 March 2001.

1. House of Lords: In Barber v Somerset County Council [2004] UKHL 13, the House allowed the appeal by four votes to one, set aside the Court of Appeal's order and restored the County Court judgment in the reduced agreed sum of £72,547.02 with interest.

2. Court of Appeal: In the composite judgment Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1 and [2002] ICR 613, the court allowed Somerset County Council's appeal. It held that the evidence did not sustain a finding of breach and also reduced the multiplier for future earnings.

3. Exeter County Court: On 8 March 2001, Judge Roach found the Council liable for the psychiatric illness caused by its breach of duty and awarded damages exceeding £101,000, including interest.