Sutherland v Hatton; Barber v Somerset County Council, Jones v
Sandwell Metropolitan District Council; Bishop v Baker Refractories
Ltd  WCA Civ 06
Stress; psychiatric illness; duty of care; damages; general
principles for psychiatric illness cases.
The cases of four separate claimants were heard by the Court of
Appeal (CA) – details below. Three out of the four claimants were
stripped of the damages they had been awarded in the first instance,
and the CA laid down 16 "practical propositions" to be considered in
injury claims arising from work-related stress.
Two main questions were addressed: first, the scope of duty owed by
the employer; and second, whether the employer had breached that
Civil - Court of Appeal
Act, Regulation or Reference:
The claimant in this case was a secondary school teacher who
suffered from depression and a nervous breakdown and was initially
awarded £90,765. The CA found that Hatton gave the school she worked
for no notice that she was growing unable to cope with her work. She
had suffered some distressing events outside of work, which the
school could reasonably have attributed her absence to, particularly
as other staff did not suffer from health problems as a result of
restructuring in the school, and the fact that she did not complain.
The court held that as teaching cannot be regarded as intrinsically
stressful, the school had done all they could reasonably be expected
to do. It was unnecessary to have in place systems to overcome the
reluctance of people to voluntarily seek help.
This case involved another teacher, employed by Somerset Council. In
the first instance, Barber was awarded £101,042 damages, after
reorganisation of the school increased his workload and led to his
suffering from depressive symptoms and taking early retirement. CA
noted that Barber was not the only teacher to have an increased
workload, nor did he inform his employer of his depressive symptoms.
It was held that the school did not breach its duty of care.
The claimant worked in a factory for 18 years, and was initially
awarded £7000 damages after suffering from a mental breakdown and
attempting suicide. In revoking the award, the CA noted that Bishop
could not cope with restructuring of the company, while all his
workmates could. Again, the claimant did not make his employers
aware of his condition, or that his GP had advised him to change
jobs. It was held that the work demands were not excessive, but that
he was "set in his ways" and wanted his old job back.
The claimant, an administrative assistant employed by the Sandwell
Metropolitan Borough Council, was awarded £157,541 in the first
instance, having suffered from anxiety and depression after a period
of extreme overwork. Unlike the claimants in the above three cases,
she had complained of her excessive workload to her manager, but she
still received no help. The CA did not revoke her award, on the
grounds that her employer knew of her excessive workload and it was
reasonable to conclude that it was foreseeable that harm would
result from the stress and from the employer’s breach of duty.
Following these principles, three of the employer’s appeals were
Sandwell MDC’s appeal was dismissed.
The guidelines set up by the CA are as follows:
- There are no special control mechanisms
relating to work-related stress injury claims; ordinary
principles of employers’ liability apply.
- The "threshold" question is whether this
kind of harm to this particular employee was reasonably
- Foreseeability depends on what the
employer knows or should know about the individual employee.
Unless aware of a particular problem or vulnerability, the
employer can usually assume that the employee can withstand the
normal pressures of the job.
- The test is the same for all occupations;
no occupation is to be regarded as intrinsically dangerous to
- Reasonable foreseeability of harm includes
- the nature and extent of the work
- whether the workload is much greater
- whether the work is particularly
intellectually or emotionally demanding for that employee
- whether unreasonable demands are being
made of the employee
- whether others doing this job are
suffering harmful levels of stress
- whether there is an abnormal level of
sickness or absenteeism in the same job or department. The
employer can take what the employee tells it at face value,
unless it has good reason not to, and need not make
searching enquiries of the employee or his or her medical
- The employer can take what the employee
tells it at face value, unless it has good reason not to and
need not make searching enquiries of the employee or his/her
- The duty to take steps is triggered by
indications of impending harm to health, which must be plain
enough for any reasonable employer to realise it has to act.
- There is a breach of duty only if the
employer has failed to take steps that are reasonable in the
circumstances, bearing in mind the magnitude of the risk of harm
occurring, the gravity of that harm, the costs and
practicability of preventing it and the justifications for
running the risk.
- The employer’s size, scope, resources and
demands on it are relevant in deciding what is reasonable
(including the need to treat other employees fairly, for example
in any redistribution of duties).
- An employer need only take steps that are
likely to do some good; the court will need expert evidence on
- An employer that offers a confidential
advice service, with appropriate counselling or treatment
services, is unlikely to be found in breach of duty.
- If the only reasonable and effective way
to prevent the injury would been to dismiss or demote the
employee, the employer will not be in breach in allowing a
willing employee to continue working.
- In all cases, it is necessary to identify
the steps that the employer could and should have taken before
finding it in breach of duty of care
- The claimant must show that that breach of
duty has caused or materially contributed to the harm suffered.
It is not enough to show that occupational stress caused the
harm; it must be linked with the breach.
- Where the harm suffered has more than one
cause, the employer should only pay for that part caused by its
wrongdoing, unless the harm is indivisible.
- Assessment of damages will take account of
pre-existing disorders or vulnerability and the chance that the
claimant would have suffered a stress-related disorder in any