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Dickins v. O2

Date: October 16, 2008

Expertise: Personal Injury

Potentially greater liability on employers for occupational stress

In Dickins v O2, judgment handed down on 16 October 2008, the Court of Appeal has upheld the trial judge’s decision to award the claimant damages for injury caused by occupational stress, purporting to apply the guidance given in Hatton v Sutherland [2002] ICR 613. In doing so, it appears that the ‘Hatton hurdles’ may not be so difficult for claimants to surmount in practice as a strict reading of Hatton might suggest. A majority also indicates obiter that Hale LJ in Hatton was wrong to say that there could be a percentage reduction to damages across the board for the contribution made by non-tortious factors.

THE FACTS

Ms Dickins’s job involved the preparation of management and regulatory accounts. She was psychiatrically vulnerable and this role was at the limits of her intrinsic capabilities. Part of her job was to carry out a quarterly audit. She found the audit in February 2002 “extremely stressful”. She had a short holiday but returned to work exhausted and on 11 March 2002 she asked her line manager for a different and less stressful job. As there were no vacancies available at the time, she was told that the matter would be reviewed in three months. Thereafter she had been repeatedly late for work. On 23 April 2002 she requested a six-month sabbatical. She said she was stressed out, was having a real struggle to get out of bed in the mornings and to get to work on time because she felt so drained of physical and mental energy, and did not know how long she could carry on before being off sick. She was advised to access O2’s confidential counselling helpline, and told her sabbatical request would be considered. On 30 May 2002 she repeated her concerns during her appraisal and she was referred to occupational health, albeit with some delay. Before any appointment was fixed she suffered a breakdown and never returned to work.

REASONABLE FORESEEABILITY

The Court of Appeal upheld the Judge’s finding that psychiatric injury was reasonably foreseeable from 23 April 2002 onwards. There was a sufficient indication of impending harm to health given the Claimant’s description of the seriousness of her symptoms, and the important background context that these problems had not come “out of the blue”. The fact that the Claimant had been mentioning difficulties over a period of time was significant given that she was usually a conscientious employee.

Thus in an appropriate case it may not be necessary to show that the Claimant has previously suffered a breakdown if her words and actions in the recent past have the cumulative effect of alerting a reasonable employer to the risk of illness.

BREACH OF DUTY

The trial judge had found that the employer was in breach of duty in not sending her home and in not making an immediate referral to occupational health. The Court of Appeal agreed. Smith LJ stated that the former would have removed the pressure she was under, and the latter would have set in motion proper professional consideration of her problems by a doctor with specialist experience in occupational health matters.

On the facts, both were somewhat surprising findings. The claimant had been asking for a sabbatical rather than immediate sick leave, and had in fact consulted her GP on 23 April 2002 who had chosen not to sign her off work. There was no specific medical evidence that either suggested step was likely to do some good (see Hatton at para 33), but this was a matter that Smith LJ felt was capable of reasonable inference.

Hatton had indicated that an employer who offered a confidential counselling service was unlikely to be found in breach of duty (see paras 17 and 43(11)), but on these facts Smith LJ found that this was insufficient to discharge O2’s duty. The employer had known that the claimant was already receiving counselling through his GP, and in any event this was a case (as in Daw v Intel Corporation [2007] ICR 1318) which required management intervention.

In one sense, all cases of workplace stress require some management intervention, and it must now be a matter of some doubt whether in practice providing a confidential counselling service will exonerate an employer in all but the clearest of cases.

CAUSATION

Despite a passage in the judgment suggesting that the breaches of duty had merely increased the risk of a breakdown, Smith LJ felt that reading the judgment as a whole, the Judge had asked the correct question, namely whether the employer’s failure made a material contribution to the onset of illness. On the facts, whilst other non-tortious factors had played a part in the breakdown, the “obvious inference” was that “she tipped over the edge because nothing significant had been done to recognise and address her need for a rest and for a change to her work requirements”.

In Hatton Hale LJ had said 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” (para 35). Smith LJ’s recourse to drawing “obvious inferences” significantly lowers this bar in practice.

APPORTIONMENT

Apportionment was not in issue on the appeal. However, both Smith LJ and Sedley LJ were critical of the trial judge’s decision to reduce the total damages by 50% across the board for the causative potency of non-tortious stress. In their view, albeit obiter and reached without argument, Hale LJ was wrong in Hatton to suggest that an employer found liable for psychiatric injury caused by occupational stress should only pay only for that proportion of the injury caused by the tort. To them, the injury was truly indivisible, and so an employer should be liable for the whole injury if proved that the tort has made more than a minimal contribution to the injury. They relied on the recent medical negligence case of Bailey v Ministry of Defence 2008 EWCA Civ 883 where the defendant was liable for the full loss despite tortious and non-tortious causes, and Sedley LJ went so far as to say that for the time being courts of first instance should take their cue from Bailey.

For now, at least at first instance, it seems that there should be no reduction for non-tortious stresses. Defendants can still argue for a discount to particular heads of loss for the risk that these other factors would have caused a breakdown in any event.

Bruce Gardiner was Counsel for O2. He can be contacted by email and by telephone on 020 7822 1200.

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