Causation Matters 2

Picture of chain breaking

Don’t break the chain of causation

It is a point often overlooked by putative Claimants that no matter how badly a Defendant may have behaved, in civil and employment claims, damages may usually (there are some exceptions) only be recovered if the conduct has actually caused some loss or damage.

This fundamental point can cause difficulties where either there are several different contributory factors to an aspect of loss or where something happens after the cause of the claim which means the loss would have occurred anyway.

The case of Osei-Adjei v RM Education Ltd UKEAT/0461/12/JOJ provides a stark illustration of both these principles at work at the same time.

The Claimant suffered an act of disability discrimination by reason of his employer’s failure to make a reasonable adjustment. He resigned and claimed constructive dismissal. His claim for compensation was for loss of earnings and psychiatric injury.

The Employment Tribunal agreed there had been disability discrimination but decided there had not been a constructive dismissal. Therefore, the Claimant was deemed simply to have elected to resign. In terms of loss of earnings then, they resulted not from the discrimination but from his decision to resign.

On psychiatric injury, the Tribunal recognised that his illness was the result of many different factors but took the view it was the discrimination which was the trigger for the illness. They awarded him £10,000 not making any deduction to reflect other causes.

On appeal, the issues were whether it was right to treat the resignation as the cause of the loss of earnings and so bar that claim and also whether there should have been a discount to the psychiatric damages award (which in any case the employer said was too high).

The first of those issues was pretty easy for the EAT. The Claimant, who had appealed the constructive dismissal finding, relied on the proposition that an employer cannot rely on its own conduct to reduce compensation. The case of Prison Service v Beart [2005] EWCA Civ 467 is clear authority for the (really rather obvious) proposition that an unfair dismissal cannot break the chain of causation. That is to say, an employer cannot sack someone and then say there is no loss of earnings because the former employee has no job.

That only worked though if there had been a constructive dismissal. If he had won that point then he’d have been right and the loss of his job would not have interrupted the loss of earnings caused by the discrimination.

But, he didn’t win. The Tribunal found he had no good grounds to argue his resignation was a constructive dismissal meaning it was a straightforward personal choice. He was unable to claim loss of earnings referable to a job he had voluntarily decided to leave.

The decision on damages for psychiatric injury was more difficult and, in my view at any rate, more controversial.

It is very clear that compensation for discrimination are to be assessed in the same way as damages in any other claim in tort or breach of statutory duty; in other words in the same way as any other personal injury claim.

So, here the Claimant was entitled to an award for psychiatric injury subject to the question of whether there should be a discount or apportionment on account of other causes of the illness.

Damages are assessed according to a tariff established by reference to previous decisions. Through a long history of similar cases, a pattern has emerged and, very helpfully, all that history has been distilled by the Judicial College into a publication called the Guidelines for the Assessment of General Damages in Personal Injury Cases. Now in its 12th iteration, this provides judges and lawyers alike with guidance as to the right level of award for different types of injuries.

Here, the EAT agreed the award itself was too high. Looking at the evidence the illness had been described as a ‘mild disorder’ so really fell into what the Judicial College Guidelines category of ‘minor’ damage rather than ‘moderate’. The advised range for ‘minor’ damage was £1,000 to £3,875.

Allowing that the discrimination triggered more severe symptoms, the EAT was of the view that the correct award should have been £5,000.

The EAT then considered other causes and identified a long list of other matters which had clearly contributed to his symptoms. There were perhaps as many as 11 other contributory factors and, it was said by the employer, the Claimant himself had at one time considered the discrimination to be only one-eighth responsible for the illness.

The EAT did not consider that to be realistic but felt that it should amount to 40% given that although not the cause, it was the trigger for his depression. Therefore, in place of the original £10,000 awarded, the Claimant was allowed 40% of £5,000, jut £2,000.

I suggested this was controversial. The reason is that the question of whether to apportion or not is still controversial in the field of personal injury claims. There are conflicting decisions in the field of psychiatric injury caused by stress at work without any detailed and authoritative determination.

The issue of whether to apportion or not depends on whether the injury is ‘divisible’ or ‘indivisible’. A divisible injury is a condition that can have more than one cause, each cause cumulatively increasing the degree of the condition (e.g. asthma).

An indivisible injury is an “all or nothing” condition where it is not possible to attribute different parts of the damage to different causes (e.g. a broken arm).

In the context of psychiatric injury caused by stress at work, it was assumed by the court that it should be treated as divisible. In the seminal case of Hatton v Sutherland [2002] EWCA Civ 76, that was the approach taken by the Court of Appeal and its guidance was to the effect that damages should be apportioned to reflect different causative factors.

That approach was turned on its head by a differently constituted Court of Appeal in Dickins v O2 [2008] EWCA Civ 1144. The appeal there was not about apportionment at all as the parties had agreed a 50% apportionment. They must have been somewhat surprised then, when the Court remarked, almost off the cuff, that there was no need for such an apportionment as psychiatric injury is indivisible.

So, provided the cause in question can be shown to have been material, there should no apportionment and 100% of damages should be recovered.

As damages for personal injury in the Employment Tribunal should be assessed in the same way as in court, if Dickins is right, there should have been no apportionment even though other factors may have contributed to the Claimant’s illness.

The EAT case of Thaine v London School of Economics UKEAT/0144/10/SM considered both Hatton and Dickins (along with several other cases) and, noting specifically that the remarks in Dickins were an aside, decided that the weight of authority was with Hatton and so damages should reflect only the extent to which the unlawful conduct has contributed to the illness.

So, we have a conflict between different Court of Appeal cases with the EAT preferring, probably rightly on authority if not on principle, to go with apportionment. Clearly that conflict needs to be resolved quickly by the senior court so that judges, lawyers and their clients know what the law is and how it will be applied.

Meanwhile it will always be essential to understand the critical importance of proving that whatever conduct you are complaining about actually caused the loss for which you want to be compensated. If not, you will be very disappointed.

As an aside, there was another twist in this tale in that the EAT fundamentally disagreed with the ET’s finding of discrimination. The reasonable adjustment said to have been refused was to carry out a workplace assessment. However, as the EAT remarked, the making of an assessment is incapable of being a reasonable adjustment by itself.

There is a line of authorities (see e.g. Rider v Leeds City Council UKEAT/0243/11/LA to the effect, that a reasonable adjustment must be an adjustment designed to enable the employee to attend work or return to work. The carrying out of an assessment achieves neither of these ends in itself.

No one had taken that point and when the employer was told that if it asked for permission to appeal (late) on the point then it would mean an adjournment (even if permission were given which was doubtful), it wisely decided not to bother.

So, bizarrely (and by its own admission uncomfortably) the EAT found itself deciding damages for a wrong which in fact had not been committed.

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