David Marshall, Partner
Solicitors Journal - 21 April 2009
A claim for compensation for stress at work requires the claimant to show damage; namely a recognised psychiatric condition (not just anxiety or distress). Further, the claimant must show that the breach of duty (not simply occupational stress) was either the sole cause of the injury or materially contributed to it (Proposition 14 of the Court of Appeal in Hatton v Sutherland [2002] EWCA Civ 76).
Causation
In determining compensation, the court will also have regard to whether a pre-existing psychiatric condition or vulnerability should lead to any award for damages being ‘apportioned’ with other competing causes of the illness so that the wrongdoer only pays a proportion of the damages (Hatton Proposition 15) or whether the development of the condition was ‘accelerated’ so that the wrongdoer only pays damages for the period of acceleration (Hatton Proposition 16). In Dickens v O2 [2008] EWCA Civ 1144 Smith LJ doubted the correctness of Hatton proposition 15 (apportionment), although she conceded that the operation of Hatton proposition 16 (acceleration) in many cases may have the same practical effect in reducing the compensation payable in respect of the breach. The observations in both Hatton and Dickins are obiter and the issue will have to be decided in an appropriate case in the future, possibly in the House of Lords.
However, it is not inevitable even in the case of a vulnerable employee that the damages will be reduced. For example, in Moore v Welwyn Components Limited (one of the conjoined appeals in Hartman [2005] EWCA Civ 06) the employee was not ‘an employee of reasonable fortitude’ but was subjected to ‘appalling bullying’. The Court of Appeal declined to reduce his compensation as the claimant established that but for the bullying he would have returned to employment and would have been unlikely to cease work early through future occupational stress.
Quantum
General damages will almost always fall within the scope of s.3 (‘Psychiatric Damage’) of the Judicial Studies Board Guidelines. Only a few stress or bullying-at-work claims (e.g. Green v DB Group Services (UK) Ltd where £35,000 was awarded) will come into category (a) ‘severe’ psychiatric injury (£35,000 - £74,000) where the prognosis will be very poor. The Judicial Studies Board point out that ‘cases of work-related stress resulting in a permanent or long-standing disability preventing a return to comparable employment’ will normally fall in category (b) ‘moderately severe’(£12,250 to £35,000). Where ‘there will have been marked improvement by trial and the prognosis will be good’ damages will fall into category (c) ‘moderate’ (£3,750 to £12,250). It would be unusual for a litigated stress claim to fall within category (d) ‘minor’.
Usually in a stress-at-work case, almost by definition, the claimant will have stopped working at least for a period of about two to three years and will have a past loss of earnings claim which is likely to be relatively uncontroversial. Calculating future loss is more difficult. The claimant should where possible seek to quantify the claim on a conventional multiplier/multiplicand basis, including any ‘loss of chance’ career models where appropriate. However, in many cases where the prognosis is unclear, but it is quite likely on the medical evidence that the claimant will eventually return to work, then a Blamire lump sum award (Blamire v South Cumbria HA [1993] PIQR Q1) may well be made. A Smith v Manchester award for handicap on the labour market should always be sought as the claimant is likely to be vulnerable to periodic relapse into depression. Awards for loss of congenial employment are common as claimants often have to leave their former employment. Usually cognitive behavioural therapy (CBT) will be recommended and the cost claimed for. However, a study of the reported cases suggests that awards for future care are difficult to obtain in stress at work claims.
David Marshall is a personal injury and employment specialist and a partner with Anthony Gold Solicitors, London. He is the author of Compensation for Stress at Work (Jordans, March 2009)
See also: Wound Up in which David Marshall examines how practitioners need to consider the preparatory work required to win stress at work claims.
