Case No: B3/2004/1354
Neutral Citation Number: [2006] EWCA Civ 90
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
HIS HONOUR JUDGE GEDDES

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 21st February 2006

Before :

LORD JUSTICE PILL
LORD JUSTICE KEENE
and
LORD JUSTICE LLOYD
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Between :

	SUSAN PAKENHAM-WALSH 	Appellant	
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	CONNELL RESIDENTIAL (PRIVATE UNLIMITED COMPANY) & ANR	Respondents	

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(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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MR P GREEN (instructed by Messrs Wace Morgan) for the Appellant
 MS C FOSTER (instructed by Messrs Halliwells Llp) for the Respondent

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Judgment
Lord Justice Pill : 
1.	This is an appeal against a judgment of His Honour Judge Geddes given at Worcester County Court on 24 May 2004.  The judge dismissed a claim for damages for personal injuries by Mrs Susan Pakenham-Walsh (“the appellant”) against her employers Connell Residential Estate Agents (“the first respondents”) and Mr Richard Wright, a manager employed by the first respondents (“the second respondent”).  The appellant alleged that she had suffered psychiatric injury in the course of her employment and that it was caused by the negligence of the respondents or a breach of implied terms as to safe system of work, and of trust and confidence, in the contract of employment.  For the appellant, Mr Green seeks a remission of the case for rehearing.
2.	The appellant was employed in Shropshire by the first respondents as a sales manager from January 1994 until her resignation in March 1999.  Her task was to sell houses and she worked at site offices on sites where new houses had been built, mainly by Bryant Homes (“Bryant”).  She met potential purchasers, escorted them around the show homes and negotiated the sale of properties.  The appellant was paid a salary of £12,000 a year for a five day week and also received commission on completed sales.
3.	Until April 1998 the appellant had also been running a business involving two clothes shops.  She was in business with her husband.  Unfortunately the business failed and the appellant in 1998 was made bankrupt.  The appellant’s case was that during the twelve months period prior to her resignation, she was required to work excessive hours without breaks and without proper support and was subjected to bullying and insulting remarks by the second respondent, who was the area manager in the area where she worked.
4.	The judge set out the chronology of work during the relevant year.  From March to May 1998, the appellant worked at Bryant’s site at Darwins Wood .  She had worked there since September 1996.  Her line manager was Ms Nikki Yates.
5.	It was planned that the appellant would move to a large new Bryant site at Berwick Grange but the site was not ready and from May until October 1998 the appellant worked at a branch office in Shrewsbury.  She assisted in the sale of second-hand homes and continued to try to sell the few properties remaining unsold at Darwins Wood.  She claimed that she was “forced to lie” about the lack of interest in these properties. She took no summer holiday.
6.	In October 1998, the appellant moved to Berwick Grange though the site was far from ready for sales and was not officially opened until January 1999.  During the October to January period, her task was to hand out brochures and record interest for later follow-up once the houses were complete.  The work became more time consuming when the Berwick Grange site opened on 29 January 1999.  Sales were slower than expected and the appellant complained to the second respondent about the lack of back-up.  On 21 March, she criticised the work of Ms Pauline Brittain, to whom I will refer.
7.	On the following day, the second respondent told the appellant that Bryant had complained about her performance on-site and wanted her removed.  He told her that he would place her temporarily on a site in Ludlow belonging to other builders.  The appellant was shocked and distressed by this and said that, when she became tearful, the second respondent leant over and kissed her.  The prospects of earning commission at the Ludlow site were, she thought, poor.  On 26 March she resigned and later made a claim of unfair dismissal to an Employment Tribunal.  That claim was settled.  
8.	It needs also to be mentioned that, in November 1998, the appellant’s daughter, from whom she had been estranged, was diagnosed with cancer and this obviously caused the appellant considerable distress.  Understandably, the appellant wished to spend time with her daughter.
9.	The judge carefully set out the sequence of events.  It is necessary to consider staffing levels during the relevant period in some detail.  The lack of support is claimed to have been a cause of the psychiatric injury and it is submitted that the judge had misunderstood the evidence about the extent of support on-site. 
10.	The trial, on liability only, took almost two weeks of court time, the judge reserving judgment from the Thursday of the second week to the Monday of the third.  When the trial was well into its second week, the parties agreed that all statements of witnesses not called should be taken into account.  There were seven such witnesses, three for the appellant and four, including Ms Nikki Yates, for the respondents.  The judge did not expressly state, but I do not doubt took into account, that the statements had not been subject to cross-examination.  The judge found, and this was not challenged, that during the relevant period Ms Nikki Yates was the appellant’s line manager.
11.	The records show that during the period before Berwick Grange opened, Ms Sarah Dare, a new homes sales negotiator, worked at the site for four days a week, three after December 1998.   Ms Dare, who gave oral evidence which was accepted by the judge, stated that Ms Yates visited the site on a regular basis and would offer any help or advice that was appropriate:  “Nikki was extremely helpful and taught me the ropes”.  The appellant accepted that the work was not particularly onerous during the pre-opening period.  Records show that Pauline Brittain started work on 4 January 1999, that is before the Berwick Grange site opened for sales.  
12.	The judge went onto consider the situation when the site was open.  He found that “for the most part it was double-manned”, as was Bryant’s wish.  Between 28 October 1998 and 3 March 1999, the appellant worked seven days a week on thirteen occasions. In addition to the appellant, Ms Brittain was working full time and Ms Dare three days a week.  Ms Brittain’s evidence was that the appellant “could have taken her two days off every week but she didn’t.  To the best of my knowledge that was her choice”.  When days off were taken, “one of the staff from Shrewsbury would cover where possible”.  Both Ms Dare and Ms Brittain stated that the appellant “would come in on Thursdays, which was her day off, and work a full day when it was not necessary”.
13.	It is submitted that the judge’s finding that for the most part the Bryant site was double manned was erroneous.  It was made, at paragraphs 11 and 12 of the judgment, when considering the period  after the site was opened for sales on 29 January 1999.  On that basis, he made no significant error of fact.  In addition to the appellant, Ms Brittain worked five days a week and Ms Dare three days a week.  Moreover, there was evidence, which the judge accepted and was entitled to accept, that, when the appellant worked additional two days in the week, she did so voluntarily.  She had a financial incentive to do so.   The additional payment was at the rate of £6.15 an hour, almost £50 a day.  The additional work would also provide additional opportunities to earn commission on sales.
14.	It is clear that the appellant felt badly about the proposed move to the Ludlow site which was a small site with much less opportunity to earn commission.  In his judgment, the judge recorded her evidence: “I was completely overwhelmed at the prospect of no income and the risk of losing my home and not being able to help my daughter financially”.  
15.	The appellant’s evidence, in contrast to that of Ms Dare and Ms Brittain, was: “The working conditions became extremely demanding.  I could not take a lunch break and I regularly stayed over or took work home in addition to overtime.  I was also under pressure to work all weekend as no one else was available to do this”.  The appellant said that she made other complaints to Nikki Yates that she was again on her own with no staff available from the Shrewsbury office.
16.	Following the conversation on 22 March, the appellant wrote to the second respondent, as area director, stating: “I cannot accept this move from my place of employment, where I live due to the travelling and additional costs involved to me”.  The second respondent acknowledged, by letter of the same date, stating that he was “extremely surprised” to receive the letter.  He stated that he had been given specific instructions by Bryant to remove her from their site at Berwick Grange.  He pointed out that throughout her career with the first respondents the appellant had worked in various locations and had travelled in the area.  
17.	The appellant responded by letter of 26 March stating that she was “absolutely distraught” at being told that she would be removed from Berwick Grange and at the alleged attempt to kiss her.  The claim in the Employment Tribunal for unfair dismissal was based only on the move from Berwick Grange and on the alleged kiss, and not on pressure of work or bullying leading to constructive dismissal.
18.	In his judgment, the judge fully set out the complaints made by the appellant against the second respondent.  He practised “the most aggressive quick firing of questions”, she thought, “to confuse and ridicule the person he was speaking to, often in front of other members of staff”.  He would swear at staff or belittle them and they were terrified of his office visits.  Treatment “centred on vulnerable people in particular and often reduced them to tears.  He was rude, foul mouthed and ignorant”.  Examples were given.
19.	The judge also referred to the evidence of Ms Karen Surridge, a new homes consultant until the summer of 1998.  She supported the appellant’s evidence, stating that she had “never experienced anything like [the second respondent’s] behaviour and rudeness”.  Mr Alan Roberts, manager of the Shrewsbury office until November 1998, said that the second respondent was abrasive and not supportive: “He could also be very demanding although he was okay if you were on the right side of him”.  On behalf of the respondents, the point is made that Mr Roberts was the appellant’s manager and gave no evidence of complaints to him about the second respondent’s conduct towards the appellant.
20.	The judge recorded that the second respondent, in his evidence, had rejected these criticisms. The judge accepted that the second respondent’s management style was probing and that he was under great pressure from Bryant to sell their houses.  The second respondent denied the attempted kiss.
21.	The judge noted that Ms Dare supported the second respondent’s version of events.  She was an important witness because of her proximity to the appellant and the work on site.  The second respondent did want to know in detail information about sales but she felt the questions were reasonable.  At no time did she see the respondent pick on the appellant or single her out for different treatment or raise his voice to her.   She never heard him being abusive or offensive in any way.  Ms Brittain’s evidence was to similar effect.  When the site opened on 29 January, he had kissed both the appellant and Ms Dare on the cheek but that was totally in keeping with the event and in no way inappropriate.  
22.	At the trial, the second respondent was cross-examined for a day and a half.  We have a transcript of two of the three sessions. The judge stated that, having observed him in the witness box, he was “far from satisfied that [the second respondent]  either bullied the [appellant] or behaved towards her in any way inappropriately.  In this as in other aspects of her evidence I prefer the evidence of [the second respondent] to that of the claimant who I find was prone to exaggerate”.  The judge accepted that “perhaps at times [the second respondent] swore but his behaviour was “far from bullying”.
23.	In support of the submission that the judge has made an erroneous finding of fact, reliance is placed on a memorandum sent by the second respondent to his superior, Mr K Waller, on 7 November 1998.  It stated:
“Sue Pakenham-Welsh has been unable to take her full holiday entitlement for the year due to staff shortages on the Bryant site.  I would therefore be grateful if you could advise Payroll Department to pay Sue two weeks holiday pay”.
The memorandum was endorsed by Mr Waller on 11 December 1998 and the money paid.
24.	When cross-examined about the apparent inconsistency between the claimed availability of staff and the memorandum, the second respondent stated: “I would have just signed it off”, meaning, as I understand it, that to receive the holiday pay in lieu, it was necessary for the failure  to take holiday being due to staff shortage.  The judge’s single finding was:
“It is true that the claimant never took the second two weeks of her holiday entitlement but she was paid two weeks wages in lieu”.
It is clear that the judge had taken the lack of holiday into account, although without further comment.
25.	The respondents take the point that the appellant was obviously concerned to earn additional money and that the wording of the memorandum is explicable on the basis suggested by the second respondent.  The appellant could only receive the holiday pay in lieu of holiday if the lack of holiday was ‘signed off’ by her supervisors as due to staff shortage.  In my judgment, no fatal flaw in the judge’s findings of fact is established either by the second respondent  signing the memorandum or by the judge’s findings as to “double manning” or by a combination of the two.  The signing off did not in the circumstances require a finding that the second respondent’s evidence on this issue was dishonest. More generally, it is submitted, the absence of leave in the summer of 1998 is far removed from the allegations of bullying against the second respondent and the psychiatric illness which is claimed is to have resulted from the work in 1999.    
26.	The judge set out the medical evidence noting it was not disputed that the claimant had suffered a psychiatric injury.  Both doctors refer to other problems in the appellant’s life. These included a divorce, her own bankruptcy, her daughter’s serious illness, the daughter’s affair with the appellant’s husband (that is her step-father and not her father as wrongly recorded by the judge).  Dr Fletcher’s opinion was that “it is very clear from [the appellant’s] presentation the nature of her symptoms can only adequately be explained by the nature of the abusive handling of her by work manager”.  Dr Bond did not agree with Dr Fletcher’s psychiatric diagnosis, causation and prognosis.  The judge preferred the evidence of Dr Bond.  I will refer to the medical issue again later but in my judgment it is not  determinative of the outcome of this appeal.
27.	The judge’s conclusions were:
“31. There is no dispute that the principles on which I should approach a case as this where psychiatric injury from stress at work is pleaded, are set out in Hatton v Sutherland [2002] EWCA Civ 76.  The ordinary principles of employer’s liability apply.  The threshold question is whether the particular harm which was attributable to stress at work to the particular employee was reasonably foreseeable.
32.	In my judgment on balance of probability for the reasons given above the claimant’s injury was not caused by stress at work nor was it caused by Mr Wright’s conduct towards her nor by a combination of the two.
33.	Even if I am wrong about that I am not satisfied that the claimant’s illness was reasonably foreseeable by [the first respondents.]  She did not complain either to Mr Wright or Nikki Yates or anyone else in authority about how stress at work was affecting hear health.  She did not make any complaint either to her GP.   Although there were times when the site was busy I do not think the work was stressful and I heard no evidence that any other employee had complained far less that they had fallen ill.  If the claimant had found the work stressful I do not think she would have volunteered to come in on her days off.  I am satisfied that she was not compelled to do that but did it of her own accord.  Nor were there any other signs that the claimant was finding it difficult to cope.  She did not take days off sick nor did her appearance or behaviour lead anyone to feel concern.  By all accounts she carried out her work conscientiously, she always appeared smartly dressed, and in short there was no alteration in her behaviour pre-1998 and thereafter.
34.	Accordingly I find that the 1st defendant was not in breach of its duty of care to the claimant nor was it in breach of contract.  Equally the second defendant was not in breach of his duty of care to the claimant.  In those circumstances the claimant’s claim against both defendants must be dismissed.”
28.	In addition to and in support of the attack upon the judge’s findings of fact, it is submitted that the judge has in his judgment ignored relevant evidence and has failed adequately to consider, or, it is submitted, to take any interest in, submissions as to the extent of an employer’s duty in circumstances such as these.  
29.	On the first point, it is surprising that the judge has not referred to evidence of witnesses, including Mr Martin Ward.  The court has his written statement which became a part of his oral evidence.   That statement was prepared with a view to his bringing a claim of his own against the first respondents and included serious criticisms of the first respondents’ systems.  Mr Ward’s own claim was not in the event pursued.  The parties have not, and understandably have not, obtained a transcript of Mr Ward’s evidence and we do not know the extent to which it was, as Miss Foster claims it was, damaged in cross-examination.  Another example given by Mr Green, on behalf of the appellant, was the written statement of Ms Jane Cawley to which he referred us.  Though she did refer to the appellant not looking well, which the witness attributed to personal problems, her statement as a whole favours the respondents; no complaints made to her, time off would have been granted on compassionate grounds if requested.
30.	While the absence of reference to other witnesses is surprising, it does not in my judgment demonstrate such a failure to consider the evidence on the essential issues as would justify the case being remitted for retrial.  Evidence was given over a period, we are told, of about eight days.  The judge had every opportunity to assess the credibility and reliability of the appellant, and of the second respondent, who was cross-examined for a day and a half.  Other witnesses central to the case were referred to.  The oral evidence of Ms Dare was considered in some detail, and accepted, and that of Ms Surridge fully set out.  Although some of the other evidence was favourable to the appellant, some of it was distinctly unhelpful to her.   I do not doubt that the judge had the essential factual issues, and the evidence relating to them, well in mind.
31.	Moreover, a point is fairly made on behalf of the respondents, about the comparative remoteness of the second respondent, the overall regional manger covering five offices from the appellant’s everyday work. The second respondent stated:
“I think I’ve already explained that I wasn’t her line manager.  She would have liaised either with the branch manager of the Shrewsbury office or Nikki Yates and if there had have been issues with regards to her not taking time off, if she wasn’t happy she could have spoken to me but she didn’t.” 
The evidence demonstrated that he was under pressure to sell houses and that can be expected to have been communicated down the line but his opportunity to bully the appellant, if so minded, was very limited.  The absence of  representation or complaints to Ms Yates, the line manager who regularly visited the Berwick Grange site, or to Mr Roberts, manager of the Shrewsbury office until November 1998, is on the appellant’s case, surprising.  
32.	The judge’s consideration of the evidence must be seen in the context of a complaint of breach of duty causing psychiatric injury and not that of unfair or wrongful dismissal.  I am satisfied that the judge applied his mind to the evidence and to the essential issues on credibility. 
33.	 In his judgment, the judge referred to the decision of this court in Hatton v Sutherland [2002] ICR 613 where the test to be applied in claims by employees for damages in respect of psychiatric injury caused by stress arising from their employment was considered.  The court held that claims should be considered in accordance with the ordinary principles of employers liability; whether the kind of harm to a particular employee was reasonably foreseeable and, once the risk of harm to health from stress in the workplace was foreseeable, whether and in what respect the employer was in breach of his duty to take reasonable care, and whether that breach of duty had caused the harm suffered.  
34.	It may be added that the court’s decision in one of the cases considered in Hatton was reversed on the facts by the House of Lords (Barber v Somerset County Council [2004] ICR 457).  In his speech, with which Lord Bingham of Cornhill and Lord Steyn agreed, Lord Walker of Gestingthorpe stated, at paragraph 63, that the exposition of the law by Hale LJ in Hatton was a “valuable contribution to the development of the law”.  While “every case will depend on its own facts,” it was useful practical guidance.  Lord Scott, who dissented on the facts, considered the exposition ‘valuable’”.  Lord Walker considered that the issue of breach of duty in Barber’s  case was “fairly close to the borderline” but that there was insufficient reason for the Court of  Appeal to set aside the finding of a judge who had seen and heard the witnesses (paragraph 67).  The facts in Barber were quite different from those in the present case.  It was the judgment of the trial judge which was upheld in the House of Lords.
35.	I set out the “practical propositions” stated by Hale LJ, giving the judgment of the court, which are relevant to the present case: [Paragraph references are to the judgment in Hatton]:  
“(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer's liability apply(para 20).  
 
(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (para 25). 

(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). 

(4) … 

(5) Factors likely to be relevant in answering the threshold question include:                                                   
(a) The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? 
(b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others? 

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers (para 29). 

(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (para 31). 

(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (para 32) ...
(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (para 33). 

(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 (para 35).”
36.	Proposition (5) is based in part on paragraphs 27 and 28 of the judgment.  They provide:
“27. More important are the signs from the employee himself. Here again, it is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health… the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental or physical health, then the employer will have to think what can be done about it.

28. Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee's work or from complaints made about it by the employee or from warnings given by the employee or others around him.”
37.	Reliance is placed by the appellant upon the failure of the judge to refer to Working Time Regulations 1998 (SI 1998 No. 1833) (“the 1998 Regulations”) in force at the material time.  The judge’s attention was drawn to the Regulations.
38.	Regulation 4 provided, insofar as is material:
“(1) Subject to regulation 5, a worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days.
(2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in paragraph (1) is complied with in the case of each worker employed by him in relation to whom it applies. …”
Regulation 5 provides, insofar as is material:
“(1) The limit specified in regulation 4(1) shall not apply in relation to a worker who has agreed with his employer in writing that it should not apply in his case, provided that the employer complies with the requirements of paragraph 4. …
(4) The requirements referred to in paragraph (1) are that the employer –
(a)  maintains up-to-date records which ;
(i) identify each of the workers whom he employs who has agreed that the limit specified in regulation 4(1) should not apply in his case;
(ii) set out any terms on which the worker agreed that the limit should not apply; and
(iii) specify the number of hours worked by him for the employer during each reference period since the agreement came into effect (excluding any period which ended more than two years before the most recent entry in the records);
(b) permits any inspector appointed by the Health and Safety   Executive or any other authority which is responsible under regulation 28 for the enforcement of these Regulations to inspect those records on request; and 
(c) provides any such inspector with such information as he may request regarding any case in which a worker has agreed that the limit specified in regulation 4(1) should not apply in his case.”
Regulation 11 provides entitlement to a weekly rest period and Regulation 13 an entitlement in each leave year to a period of leave.
39.	Reliance is placed on the Regulations in the present case as setting a standard by which an employer’s conduct is to be judged and not as a separate cause of action.  A 7 day week, at  7½ hours a day, amounted to a working week of 52½ hours.  The working week on which the salary was paid, 5 days of 7½ hours, was at 37½ hours well below the 48 hours specified in the Directive as was a 6 day week of 45 hours, which would also allow a rest day. 
40.	In Hone v Six Continents Retail Limited [2005] EWCA Civ 922, the employers sought to set aside a finding by the trial judge that injury to Mr Hone’s health was reasonably foreseeable upon an application of  proposition (7) in Hatton.  Mr Hone was employed as a Licensed House Manager. The judge relied on several factors.  Mr Hone said that he was working ninety hours a week and was refusing to sign the opt-out under the Working Time Directive.  He had specifically complained of excessive hours and had told his superior he was tired as a result of the hours he was working. He had asked for an assistant manager.
41.	There are clear factual differences between the case of Mr Hone and that of the appellant:  There is a big difference between 90 hours and the 52½ hour week.  Mr Hone had been asking for an assistant manager from early on in the employment.  He had refused to sign the opt-out under the Regulations, whereas the appellant had, on the judge’s findings, agreed to work the additional hours (though not in writing).  Mr Hone had specifically complained of the excessive hours and had told his superior he was tired as a result of the hours he was working.
42.	The court in Hone also laid emphasis on respecting the findings of the trial judge.  At paragraph 16 of his judgment, Dyson LJ referred to the speech of Lord Porter in Bolton v Stone [1951] AC 850, at page 860 and the judgment of Buxton LJ in London Borough of Islington v University College London Hospital NHS Trust [2005] EWCA Civ 596.  Dyson LJ stated:
“It follows that unless this court is satisfied that the judge has either misdirected himself or has decided the issue of reasonable foreseeability in a manner which is clearly wrong, his or her decision on that point should not be interfered with”.

43.	Lord Phillips MR stated, at paragraph 20:
“But questions of fact-based judgments such as these are essentially a question for the trial judge and this court should only interfere if satisfied that the judge’s application of the law to the facts was not open to him on the evidence”.
As finally in Barber, it was the conclusion of the trial judge which was upheld.
44.	Reliance has also been placed on behalf of the appellant on the conspicuous lack of records kept by the respondents.  As the second respondent accepted in evidence, there were no written appraisals of employees and no records complying with regulation 5(4) of the 1998 Regulations.  Reliance is placed on the lack of any system in this respect to demonstrate a breach of duty in failure to foresee psychiatric illness.  
45.	The lack of records is in my judgment deplorable.  While that, and the apparent lack of awareness of the consequences of the 1998 Regulations provides a favourable background, from the appellant’s point of view, against which to assess whether there has been a breach of duty by the employer, they do not in themselves establish a breach of duty.  All the facts need to be considered in assessing whether psychiatric illness arising from the stress of doing the work the appellant was required to do was reasonably foreseeable by the employer and that specific action should have been taken by the employer.
46.	In this case, it cannot be said, as a starting point, that the work was particularly intellectually or emotionally demanding, though it required dealing with members of the public for many hours.  There had been no absences from work and, on the judge’s findings, no complaints from the appellant or  warnings from others as to stress levels.  The present complaints were not made to the  Employment Tribunal.  Signs of stress must in any event be distinguished from signs of impending harm to health.  There was no history of illness attributable to stress at work and there were no contemporaneous medical reports.  The circumstances fall far short of establishing a falling below the required standard.
47.	The appellant had considerable personal problems and, partly because of that, wished to earn as much money as she could.  Her resignation was at least partly motivated by a move of workplace which had adverse financial consequences.  A situation could arise in which an employer is required to protect an employee with personal problems from overwork and also to protect the employee against her own wish to earn more money by not permitting additional hours but, in terms of establishing a breach of duty, that situation was, in my judgment, far from arising in this case, and the judge was entitled so to find.
48.	The judge clearly had in mind the Hatton test and he was entitled to reach the conclusions stated at his paragraph 33, already set out.  His reasoning, at paragraph 33, closely follows the Hatton guidelines. Thus I conclude first, that the judge was entitled to make the findings of fact he made following a long trial.  Secondly, his finding on foreseeability is not challengeable. His findings are sufficiently reasoned.  The appellant’s personal misfortunes during 1998 and early 1999 provided an alternative explanation for the psychiatric injury which occurred.  While the respondents can be taken to have known of those other events, the judge was entitled to hold that a duty to take steps, such as insisting that the appellant take her days off, was not “triggered”, within proposition (7) in Hatton.”  
49.	I need to mention what has been described as the Nikki Yates memorandum.  That purports to be a contemporaneous note by Ms Yates of a discussion between her and the appellant at Ludlow on 23 March 1999, that is the day after the appellant had been told that she was to be moved from Berwick Grange to a site at Ludlow.  Mr Green has accepted that it flatly contradicts the appellant’s evidence and that it is in effect a complete answer to the appellant’s case.  Its authenticity is challenged.  It was not disclosed until long after the event, the first reference to it being in Dr Bond’s report. Plainly, it should have been disclosed.  
50.	The judge’s only reference to the memorandum in his judgment is to the fact that it records that the appellant “not only expressed disappointment about the request for her to leave the Berwick Grange site but also reported being ‘very stressed’ due to her daughter’s illness”.  The judge referred to it in the context of considering the medical evidence of Dr Bond and that of Dr Fletcher and that part of the memorandum is hardly controversial.
51.	While comment is fairly made by Mr Green upon the existence of the document in a case where records are sparse, and upon the failure to disclose it sooner, the judge was entitled to admit it.  Its contents were adverse to the appellant but there is no indication in the judgment that it was central to the judge’s deliberations; indeed silence indicates that it was not.  It would have been better if the judge had specifically stated in his judgment what he made of the memorandum but that failure does not support a claim for a remission of the case for re-hearing in my view. 
52.	As to the medical evidence, the judge’s preference for the evidence of Dr Bond depended in part on Dr Bond’s view of the respondent’s evidence on working conditions.  The doctors’ opinions were significantly influenced by their own view of the appellant’s evidence.  In the event, and having assessed the witnesses, the judge substantially agreed with Dr Bond’s view of the evidence.  Had he not done so, and accepted the evidence given by and on behalf of the appellant, the claim would probably not have been dismissable solely on the basis Mr Bond’s opinion on the causation of the psychiatric condition.
53.	I would dismiss this appeal.
54.	The judge’s findings are justified and sustainable for the reasons given, and succinctness is normally a virtue.  I do, however, add that it would, in my view, have been better in this case had the judge, in his judgment, addressed in greater detail some of the evidence and submissions, or at least stated why he was not doing so.   The judge’s reasoning is held to be sufficient and the trial fair but the parties were left with a sense of incompleteness and doubt which, even if not justified and not material to the result, would better have been avoided. The brevity of the judgment has also made necessary an investigation in this court of the entire circumstances of the trial of greater length and complexity than would have been necessary had the judgment been fuller.  However, I repeat that the judge’s failure specifically to address some of the points raised, or deal with them in greater detail, does not render challengeable his findings on the essential issues, or his conclusion.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 
Lord Justice Keene: 
55.	I agree that this appeal should be dismissed.  I accept that the trial judge could have dealt more fully with some of the evidence put before him, but looking at the matter in the round it seems to me that he was entitled to conclude that there was no breach of duty by the respondents.  His conclusion to that effect turned on findings of fact, which were essentially for him to make.  I am not persuaded that those findings were not open to him on the evidence.
Lord Justice Lloyd:
56.	I agree.