The court in Hiles v. South Glos. NHS PCT was persuaded that the Claimant’s actions and complaints were sufficient to put the Defendant on notice that her work was harming her health.

Hiles v. South Gloucestershire NHS Primary Care Trust

QBD 20.12.06 Robert Moxon-Browne QC

Facts

The Claimant (42) qualified as a Health Visitor in 1992 but started work for the Defendant in February 2000 as a Child Health Visitor, working 28 hours per week over 4 days. She worked in a team of 3 and was told that her case load should not exceed 200 children.  In early 2002, her workload increased so that she had 230-240 files, which she found difficulty coping with. There were severe staff shortages. On 07.05.02, the Claimant had an Independent Performance Review (IPR) with her manager at which she says she complained of an inability to cope and became tearful and distressed.  The manager had no recollection of the Claimant becoming distressed and tearful but the Judge accepted the Claimant’s evidence on the point.  She was told that the manager would keep a close eye on her, keep her workload under review and be available for one-to-one meetings.  The manager’s note specifically recorded that support was required to ensure the Claimant’s "wellbeing" and to prevent her becoming "too stressed".

Within a few weeks of the IPR, the Claimant’s workload was further increased as a member of the team was redeployed.  She did not receive additional support from her manager, who herself was very busy.  No specific complaint was made by the Claimant.  On 15.08.02, there was a staff meeting at which it was recorded that the Claimant had said she was "tired" as a result of the high workload, and there were complaints from another team about workload.  The Claimant was advised to prioritise her work. On return from a week’s holiday on 09.09.02, the Claimant was confronted by an accumulated backlog of work which she said she could not cope with.  She immediately developed a migraine and, she said, lost vision in one eye.  She told her manager that she could not face the workload and needed extra help. She was sent home.

On 17.09.02, the Claimant and a colleague wrote to the manager saying that management of their caseload was increasingly difficult but not stating that there was any risk to her health.  Her manager replied that "In order to prevent existing Health Visitors from going sick, it was important that health workloads be reviewed".  In October 2002, the Claimant’s symptoms worsened and on at least one occasion she was seen by her manager in tears.  There were discussions about reducing hours.  In early November 2002, she started counselling but then broke down completely and was signed off work.  She had not worked as a Health Visitor since.

Liability

The Judge looked at the factors listed in Hatton v. Sutherland and concluded that the Defendant knew, or ought to have known, that the Claimant was at risk of suffering a psychiatric injury and had failed to take appropriate steps to prevent that injury.  The Defendant had been put on notice of the Claimant’s vulnerability by her emotional state at the IPR in May 2002.  Despite the promise of additional support, none was supplied and the Claimant’s workload increased.  Complaints about workload were made by the Claimant and other teams, though there was no specifically recorded complaint that the Claimant’s health was being affected.  However, the Claimant had been sent home ill on 09.09.02 on her return from holiday.  Her manager had thought this was simply a case of a member of staff having to go home with a bad migraine, but the Judge found that she should have realised, or at least suspected, that there was probably a link with work.  The penny may not have dropped but is should have done. Tacit acceptance of the problem was revealed in the manager’s memo of 17.09.02 but still nothing was done. No step was taken to reduce workload or supply additional staff. (No evidence was called as to why there was a staff shortage). The Claimant’s injury had been reasonably foreseeable and could have been prevented by exercise of reasonable care.

Quantum 

There was disputed psychiatric evidence.  The Defendant’s expert, Dr Neil, attributed ongoing depression to unrelated matters or intentional exaggeration and felt that the Claimant could have returned to work as a Health Visitor in August 2003.  The Judge preferred the evidence of the Claimant’s expert, Dr O’Connell.  The Claimant had suffered a depressive illness as a result of working conditions but the prognosis was good.  She was doing some limited work but should be able to return to her previous hours within 6 months or so.  PSLA were assessed at £12,500.  In addition to past loss, future loss of earnings were allowed at £6,000, costs of CBT at £2,700 and Smith v. Manchester at £5,000 to protect against the risk of recurrence of illness.

The judgment is not very clear as to the point at which the culpable negligence commenced. It does not appear to have been argued by the Defendant that the Claimant may have suffered a breakdown in any event or that, by the point at which the Defendant was in breach of duty, the Claimant was already on the road to a breakdown.  The decision hinged on the Judge’s finding of fact that, at the IPR in May 2002, the Claimant became tearful and distressed and displayed sufficient signs of stress that her manager should have realised that her health was in danger.  Even though at all points the Claimant’s evidence was preferred, had the Judge not made this finding of fact, it is difficult to see how the injury could have been foreseen as there was no other evidence of complaints of impending harm to health, though the memo in September 2002 clearly recognised a general risk.

Simon Cradick can be contacted on 029 2038 5464 or be email.