Green v DB Group Services (UK) Ltd., Court of Appeal - Queen's Bench Division, August 01, 2006, [2006] IRLR 764,[2006] EWHC 1898 (QB)

Resolution Date:August 01, 2006
Issuing Organization:Queen's Bench Division
Actores:Green v DB Group Services (UK) Ltd.
 
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Case No: TLQ/05/0753Neutral Citation Number: [2006] EWHC 1898 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLTuesday 1st Aug 2006Before :THE HONOURABLE MR JUSTICE OWEN- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Robert Glancy QC (instructed by Mishcon de Reya) for the ClaimantMr Geoffrey Brown (instructed by Beachcroft Wansbroughs) for the DefendantHearing dates: 26, 27, 28 April and 2, 3, 4, 5, 9, 10, 11, 15 May 2006 - - - - - - - - - - - - - - - - - - - - -Judgment The Honourable Mr Justice Owen : 1. The defendant is a commercial bank operating in the City of London. The claimant, who was born on 12 January 1970, was formerly employed by the defendant as a Company Secretary Assistant in its secretariat department. Her employment commenced on 6 Oct 1997. On 7 November 2000 she was admitted to hospital where she was diagnosed as suffering from a major depressive disorder. On the 13th of March 2001 she returned to work, initially on a part-time basis. In October 2001 she suffered a relapse of her psychiatric illness, and at the end of the month stopped work. She did not return to work; and her employment was terminated by notice dated 8 August 2001 to take effect on 12 September 2003. Seven days later, on 19 September 2003, she issued proceedings claiming damages for personal injury, and consequential loss and damage, alleging that her psychiatric injury was the result of harassment and bullying by her fellow employees for whom the defendant is vicariously liable, and of a failure of management on the part of the defendant. The claim gives rise to complex factual and medical issues; but before addressing such issues, it is necessary to consider the legal framework within which those issues fall to be resolved.2. THE LEGAL FRAMEWORKIn her pleaded case the claimant sought to rely on a number of causes of action. First and foremost she alleges that the defendant was in breach of its duty of care to her. It was accepted in the re-amended defence that the defendant owed her a duty to exercise reasonable care for her safety, but it will be necessary to consider the cause of action in negligence in greater detail. Secondly the claimant asserts that the defendant was in breach of her contract of employment. Again it was accepted in the re-amended defence that the defendant was under a contractual duty to exercise reasonable care for her safety. But as was tacitly acknowledged by the parties in their closing submissions, this is not a case in which the claimant could succeed in breach of contract if she failed in her action in negligence; and I do not therefore propose to give separate consideration to the cause of action in contract. The claimant no longer seeks to rely upon the third cause of action pleaded in the statement of case, the allegation that the conduct of which she complains amounted to a breach of the statutory duties owed to her by the defendant as her employer. But she does rely upon the fourth pleaded cause of action, the claim under the Protection from Harassment Act 1997 to which I shall return. 3. As to the claim in negligence, there is no dispute that the defendant owed its employees a duty to take reasonable steps to protect them from foreseeable harm to their physical or mental health. But it is instructive in this context to consider the judgment of the Court of Appeal in Sutherland v Hatton (2001) EWCA Civ 76. The judgment of the court was given by Hale LJ. Having considered the relevant legal principles, she set out a number of practical propositions applicable to cases in which there is a claim for psychiatric injury caused by work related stress. In this case it was clear from the evidence that the workload in the defendant's Secretariat Department increased demonstrably during the period with which I am concerned. But it is not the claimant's case that her breakdowns were caused by overwork, or that the defendant was negligent and/or in breach of contract in that regard. As the claimant said in the course of cross-examination:``Q. Is it right that you never complained about your workload during that period? (late 1997-April 2000)A. What I would like to say is that throughout my career at Deutsche Bank no I never complained about my workload. I complained about the heavy workload as did everybody.I feel that this is not the main thrust of my case. I truly believe that the main thrust of this case is that I was bullied and harassed. There were times when I was overworked.'' 4. Mr Glancy QC made the claimant's position clear in his closing submissions: ``But this is not a case where the claimant says her breakdown was caused by excessive hours ...I simply invite your Lordship to say that there are many regulations to protect employees, and particularly the working time regulations, and if your Lordship accepts she was working, very long hours, then she was affected certainly by that. But that was essentially related herself, to the bullying and to the harassment. It was not in itself a cause of action.''5. But the practical propositions advanced by Hale LJ in Sutherland v Hatton nevertheless provide some guidance as to the proper approach to the issues to which this case gives rise, in particular the importance of what she described as the ``threshold question'', namely whether psychiatric injury or illness was reasonably foreseeable. As she said at paragraph 43(3): ``(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability''. (para 29)6. Secondly at 43 (14), and (15) she addressed the issue of causation, and at (16) the issue of damages: ``(14) 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 has caused the harm. (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39). (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42).'' 7. The need for foreseeability of injury in this context was emphasised by the Court of Appeal in Garrett v London Borough of Camden [2001] EWCA Civ 395, a case in which the claimant claimed that he had been harassed, intimidated and systematically undermined.``Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simple overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employer's ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability.'' Per Simon Brown LJ at para 63.8. There are two limbs to the claimant's claim in negligence. First she contends that her psychiatric injury, and consequential loss and damage, were the result of bullying and harassment on the part of a number of the defendant's employees for whom the defendant is vicariously liable. Secondly she contends that there was a negligent failure on the part of the management and of the defendant's Human Resources (HR) department, to take any or any adequate steps to protect her from such conduct.9. As to the first, the questions to be determined when considering whether alleged bullying and harassment give rise to a potential liability in negligence were addressed by Gray J. in Barlow v Borough of Broxbourne [2003] EWHC 50 QB. His analysis, with which I respectfully agree, and which is directly applicable to this case, is to be found in paragraph 16 of his judgment:``(i) whether the claimant has established that the conduct complained of in the Particulars of Claim took place and, if so, whether it amounted to bullying or harassment in the ordinary connotation of those terms. In addressing this question it is the cumulative effect of the conduct which has to be considered rather than the individual incidents relied on;''(ii) did the person or persons involved in the victimisation or bullying know, or ought they reasonably to have known, that their conduct might cause the claimant harm;(iii) could they, by the exercise of reasonable care, have taken steps which would have avoided that harm and(iv) were their actions so connected with their employment as to render the defendant vicariously responsible for them.I would simply add to (ii) that in this case the harm in question is psychiatric illness or injury.10. As to the second the questions to be determined are: (i) did the claimant's managers and/or members of the HR department know or ought they reasonably to have known that the claimant was being subjected to the conduct complained of,(ii) did they know or ought they reasonably to have known that that such conduct might cause the claimant psychiatric injury,(iii) could they, by the exercise of reasonable care, have taken steps which would have avoided such injury. 11. Protection from Harassment Act 1997 Section 1 of the Protection from Harassment Act 1997 provides that:``(1) A...

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