Causation and psychiatric damage: Dickins v O2 plc

Breach of duty

In Hatton, the Court of Appeal had suggested that an employer who offers a confidential counselling service was unlikely to be found in breach of duty. However, it is clear that merely providing a counselling service is not, in itself, sufficient. In Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70, Pill LJ rejected the employer’s argument that it had satisfied its duty to the employee simply by providing counselling services, saying: ‘The reference to counselling services in Hatton’s case does not make such services a panacea by which employers can discharge their duty of care in all cases.’ Although there would be cases in which an employee may be expected to take refuge in counselling services, the employee’s problems in Daw could only have been dealt with by management intervention. In Dickins v O2 plc, Smith LJ, having cited Daw, observed that the same was true in the case of Mrs Dickens. Smith LJ pointed out that in Hatton it was made plain that the advantage of a counselling service was because many employees were unwilling to admit to their line managers that they were not coping with their work for fear of damaging their reputations. A confidential service enabled the employee to take advice without making any potentially damaging disclosure direct to the employer. But in Dickins, the employee was not afraid to tell her line manager that she was ‘at the end of her tether’:

‘Given the situation where the respondent was describing severe symptoms, alleging they were due to stress at work and was warning that she did not know for how long she could carry on, I do not think that a mere suggestion that she seek counselling could be regarded as an adequate response’ (at [27]).

Counsel for the defendants in Dickens also sought to draw aid from statements in Hatton that it is usually the employee who is in the best position to decide whether to continue working. On that basis it was up to the claimant to decide to take a period of sick leave and to seek the help of her general practitioner. But as Smith LJ commented, at [34]:

‘If that were the law, it would be impossible for any claimant ever to establish liability for illness due to stress at work; the responsibility for his health and for continuing at work in the face of signs of excessive stress would lie only on the claimant himself. That is not the law, as cases such as Hatton and Barber have made clear. There may be cases in which the employee is able to make appropriate decisions but the judge was quite entitled to take the view that, after the respondent had told [the defendants] about the condition she was in, some responsibility passed to the employer.’

Causation

In addition to the problem of proving breach of duty, proving causation is problematic for many employees in claims for occupational stress. The employee has to demonstrate that the psychiatric illness is due not simply to ‘stress at work’ but that it was the employer’s specific breach of duty that caused the damage. This is complicated by the fact that there are many other stressful factors in ordinary life that can contribute to mental breakdown (eg illness, divorce, bereavement or other family problems). In Hatton [2002] EWCA Civ 76; [2002] 2 All ER 1 at [35] the Court of Appeal commented that: ‘Where there are several different possible causes, as will often be the case with stress related illness of any kind, the claimant may have difficulty proving that the employer’s fault was one of them.’ Thus, proof of a psychiatric condition together with a ‘stressful’ working environment is not sufficient to establish a causal link. The employee does not have to prove that the employer’s breach of duty was the sole cause, however, merely that it made a material contribution to his mental illness (ibid, applying Bonnington Castings Ltd v Wardlaw [1956] AC 613).

In addition, it was arguable that, in the light of the Court of Appeal decision in Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421, where it is possible to identify the extent of the contribution made by the defendant’s negligence to the claimant’s psychiatric damage, then the defendant is only liable to that extent (see the discussion of this point in Hatton v Sutherland [2002] EWCA Civ 76; [2002] 2 All ER 1 at [36] to [41]). In Barber v Somerset County Council [2004] UKHL 13; [2004] 2 All ER 385 at [63] Lord Walker approved the exposition and commentary on occupational stress claims by the Court of Appeal in Hatton, though his Lordship specifically declined to express a view on the section of the judgment in Hatton dealing with apportionment and quantification of damage.

In Dickens, the trial judge had identified the defendants’ specific breach of duty that was said to be causally relevant, but then referred to the claimant losing the ‘chance’ of a swift recovery and the ‘chance’ of not plummeting to the depths of her subsequent illness. The Court of Appeal accepted that this was inappropriate, because Dickens was not a ‘loss of a chance’ case; it was a case where more than one factor had causative potency in the development of the illness. Nonetheless, taken as a whole, and supported by the psychiatric evidence, it was clear, said Smith LJ, that the judge had found that the identified breach of duty had made a material contribution to the claimant’s psychiatric illness. The judge then apportioned the loss, and concluded that the claimant should recover 50% of the total damages. Smith LJ, at [38], observed that:

‘It seems to me that it would have been perverse to hold that the failure to address her problems had not materially contributed to the tipping over into psychiatric illness. It plainly had. It is true that there were other factors in play. The respondent’s vulnerable personality was no doubt an underlying cause of her breakdown. Her relationship with her partner could have been another; so might her IBS although that could be seen as an effect of stress rather than a cause of it. But the appellant’s failure plainly made a material contribution.’

The causation issue might have ended there, since neither the claimant nor the defendant, questioned the judge’s apportionment of 50%. It is apparent, however, that the Court of Appeal was not happy to let this particular issue rest, partly, it would seem, because two members of the court had been involved in the case of Bailey v Ministry of Defence [2008] EWCA Civ 883; [2008] LS Law Med 481 (see the discussion of this case by James Lee at (2008) 24 PN 194). In Bailey the claimant suffered brain damage caused by a cardiac arrest, having inhaled her own vomit while in hospital. The reason that she was unable to react to the vomit was because she was in a very weakened state. There were two causes of that weakness, only one of which was attributable to the negligence of the defendants. The Court of Appeal held that the negligence had materially contributed to the claimant’s weakness and the claimant succeeded in full. On the evidence, it was not known whether ‘but for’ the negligence the claimant would in any event have been so weak that she would probably have suffered the same fate. In other words, ‘but for’ causation was not established, because it was possible that the nontortious cause of the claimant’s weakened state would have weakened her sufficiently for the accident to have occurred in any event. But since both causes (the tortious and the non-tortious) contributed to her weakened state the defendant was held liable for the whole loss, with no apportionment of the damage to the non-tortious cause.

Smith LJ queried whether the situation in Dickens was any different from that in Bailey. The damage in Dickens could be regarded as indivisible injury (the claimant’s seriously damaged mental health state following her breakdown) with more than one cause. It could not be said that ‘but for’ the tort the claimant would probably not have suffered the breakdown (ie ‘but for’ causation was not established) but it was possible to say that the tort had made a material contribution. If that was correct, the starting point should have been that the claimant was entitled to recover in full (per Smith LJ at [42]). In Hatton, Hale LJ had said that a claimant could establish causation by showing that the tort had made a material contribution to the injury. This presupposed that there were other nontortious factors and that it would not be possible for the claimant to succeed outright on causation by showing that, but for the tort, he would probably not have suffered the injury. However:

‘That means that a claimant can succeed on causation even though he cannot demonstrate what the causative potency of the tort was, save to say that it had some effect which went beyond the minimal. It seems to me that, if in one breath the judge holds that all that can be said about the effect of the tort is that it made an unspecified material contribution, it is illogical for him, in the next breath, to attempt to assess the percentage effect of the tort as a basis for apportionment of the whole of the damages. That is not to say that it is not important to have in mind in assessing damages the condition of the claimant before any tortious act occurred. In particular it might be appropriate, where the judge holds that non-tortious factors have been in play, to discount particular heads of damage, for example, to reflect the risk that the claimant might in any event have suffered a breakdown at some time in the future and would then have suffered some loss of earnings or incurred some expense’ (at [43]).

Smith LJ considered that apportionment was usually carried out only in cases where the injury is divisible, where the seriousness of the medical condition is ‘dose-related’. In that situation the tort has caused only part of the overall injury, and in assessing damages the pragmatic course may be to assess damages for the whole loss and then apportion the loss between the tortious and the non-tortious causes. Such an approach could work, said Smith LJ, in cases such as dust exposure, noise-induced deafness and hand/arm vibration syndrome. Other cases might involve a tortious aggravation of an existing condition where the sensible approach is an across the board apportionment of the total loss. But Smith LJ doubted the applicability of such an approach to a case of psychiatric injury where there were multiple causes of the breakdown (at [44]). This led Smith LJ to query whether the guidance provided in Hatton on causation was correct (noting that in Barber v Somerset County Council [2004] UKHL 13 Lord Walker had specifically declined to comment on the Court of Appeal’s exposition of the causation issue):

‘I respectfully wish (obiter) to express my doubts as to the correctness of Hale LJ’s approach to apportionment. My provisional view (given without the benefit of argument) is that, in a case which has had to be decided on the basis that the tort has made a material contribution but it is not scientifically possible to say how much that contribution is (apart from the assessment that it was more than de minimis) and where the injury to which that has lead is indivisible, it will be inappropriate simply to apportion the damages across the board. It may well be appropriate to bear in mind that the claimant was psychiatrically vulnerable and might have suffered a breakdown at some time in the future even without the tort. There may then be a reduction in some heads of damage for future risks of non-tortious loss. But my provisional view is that there should not be any rule that the judge should apportion the damages across the board merely because one non-tortious cause has been in play’ (at [46]).

Sedley LJ agreed:

‘I am troubled by the shared assumption about the appropriateness of apportionment on which the case has proceeded. While the law does not expect tortfeasors to pay for damage that they have not caused, it regards them as having caused damage to which they have materially contributed. Such damage may be limited in its arithmetical purchase where one can quantify the possibility that it would have occurred sooner or later in any event; but that is quite different from apportioning the damage itself between tortious and non-tortious causes. The latter may become admissible where the aetiology of the injury makes it truly divisible, but that is not this case’ (at [53]).

Sedley LJ concluded that the principle of stare decisis required courts of first instance, at least for the present, to follow Bailey, rather than the dicta on causation from Hatton.

The consequence of the dicta in Dickens in treating psychiatric harm as an indivisible injury (unlike conditions such as asbestosis, industrial deafness or vibration white finger) is that the causation principles applied to psychiatric harm should be the same as those applied in a case like The Environment Agency v Ellis [2008] EWCA Civ 1117 (commented on by Jones in this issue: see p 250) to a back injury, where there has been more than one contributing accident. In that case the Court of Appeal held that where the defendant’s negligence was a material contributory cause of the claimant’s damage then, unless a second accident (for which the defendant was not legally responsible) had the effect of breaking the chain of causation entirely as an ‘intervening act’, the defendant is liable in full for the consequences of his negligence, even though the second accident had also contributed to the damage. There should be no apportionment for a ‘contributory intervening factor’. It was appropriate to make a deduction from the damages if the evidence demonstrated that the claimant had a pre-existing condition which meant that he would probably have developed some symptoms in the future in any event, but this was simply part of the assessment of the loss. In the same way, the Court of Appeal in Dickens accepted that it would have been appropriate to discount the award of damages in respect of the claimant’s psychiatric state to allow for the possibility that she would in any event have developed a psychiatric condition as a result of a pre-existing psychological vulnerability. The court did not accept, however, that the often multi-factorial nature of causation in cases of psychiatric harm was a reason for apportioning causal responsibility between tortious and non-tortious causal factors.

Michael A. Jones

University of Liverpool