The measure of injury

The Court of Appeal revisited the issues of occupational stress particularly in the context of foreseeability of psychiatric harm and causation of a resulting psychiatric illness in the case of Dickins v O2 Plc [2008] EWCA Civ 1144, [2008] All ER (D) 154 (Oct).

Dickins had been employed by O2 for several years, initially as a secretary in 1991 and was eventually promoted to regulatory finance manager in 2001, a position for which, although she did not have any formal accountancy qualifications, she had been promised appropriate training and support. While the court acknowledged that Dickins had had a good work record, it had felt that she had been promoted to the very limit of her capability as a result of which, she had become extremely stressed and exhausted and eventually unable to work.

Unfortunately, Dickins did not receive help and soon came to the “end of her tether”. She asked to move to a less stressful job in March 2002 but there were no vacancies at that time and she was asked to wait a further three months. Dickins continued to struggle and requested a six-month sabbatical from her employer in April 2002, saying that she lacked physical and mental energy and did not know how long she could carry on before taking sick leave. She said that she was “stressed out”.

Her manager had recommended that she contact the in-house counselling service but she did not do so as she was already undergoing private counselling at the time. It was thought by her GP that the bouts of IBS which the claimant had been suffering in 2001 might be stress related. However, O2 did not know why she was undergoing counselling at the time. Dickins again requested six months off in May 2002 and was told that she would be referred to the cccupational health department. A referral was made but not acted upon. In June 2002, after consulting with her GP, Dickins was signed off as unfit for work on account of anxiety and depression. She has never returned to work.

Grounds of appeal
At first instance, the respondent was found liable for Dickins’s psychiatric injury caused by excessive stress in the course of her employment. It was held that it was clear Dickins had been under extreme stress; that she should have been granted time off work when it was first requested and that an immediate occupational health referral should have been made. The failure to do so had deprived Dickins of the loss of a chance of not plummeting to the depths of illness she later reached.

O2 appealed on the grounds that there was no foreseeability of an impending injury to health; that Dickins had not gone far enough to put O2 on clear notice that, unless something was done, it was foreseeable that she would suffer psychiatric harm; and that all the previous incidents of which Dickins complained did not amount to sufficient notice. The judge’s approach to causation was also appealed as he had considered the matter in loss of a chance terms rather than finding that the breach of duty had made a material contribution to the onset of the illness.

Notice and breach
O2’s appeal was dismissed. It was not accepted that the trial judge had failed to appreciate the difference between stress and stress-related illness and that the evidence was strong enough to conclude that O2 had received a clear indication of impending illness. It is of course of note that in the seminal occupational stress case of Hatton v Sutherland [2002] ICR 613, [2002] 2 All ER 1 subsequently endorsed in Barber v Somerset County Council [2004] ICR 457, [2004] All ER (D) 07 (Apr), this distinction was crucial as stress is the mechanism which may (but usually does not) lead to, damage to health, and therefore a clear and plain indication would be required that a person would go over the edge from stress to actual injury to health. O2 had argued that no such plain indication was present on the facts of this case.

O2 also argued that in accordance with para 43(11) of the Hatton judgment, an employer which offers a confidential advice service with referral to appropriate counselling or treatment services is unlikely to be found in breach of duty. In rejecting this argument, the Court cited Daw v Intel Corporation [2007] ICR 1318, [2007] All ER (D) 96 (Feb) where it was held that the Hatton reference to counselling services did not make such services a panacea by which employers can discharge their duty of care in all cases. Here, as in Daw, the employee’s problems could only be dealt with by management intervention, particularly given that Dickins was describing severe symptoms allegedly due to stress at work. In light of this, counselling could not be regarded as an adequate response.

Causation
The court agreed that the judge had not asked the right question as to causation, ie did the breach of duty make a material contribution to ill health?—but instead had unnecessarily entered into the area of “loss of a chance”. However, this concession did not alter the court’s views as to the judge’s ultimate conclusion, as the court went on to find that it was clear from the judge’s findings and the psychiatric evidence that the identified breach had made a material contribution to the severe illness. The obvious inference was that Dickins had tipped over the edge from suff ering stress into a complete breakdown because nothing significant had been done to recognise and address her need for a rest and a change to her work requirement and this failure to address her problems had plainly materially contributed to this tipping over.

In effect, despite the judge applying the wrong test on causation, the Court of Appeal was prepared to draw inferences from his findings of fact because it believed that a finding of material contribution was “inevitable” on the basis of those findings.

Apportionment
In assessing damages, the trial judge took account of the contribution of other nontortious factors which had contributed to Dickins’s illness and reduced the damages by 50%. This was not challenged by either party.

Despite not having had the benefit of hearing argument, Lady Justice Smith commented upon Lady Justice Hale’s guidance on the question of apportionment in Hatton, something which the House of Lords expressly declined to endorse in Barber as no argument had been heard on the topic. She expressed her provisional view that in the case of an indivisible psychiatric injury where it is not scientifically possible to establish the amount of the tortious material contribution to injury, it was not necessary for a judge to apportion damages across the board merely because one non-tortious cause had been in play. This was a view echoed by Lord Justice Sedley. It remains to be seen whether these obiter remarks will be influential in subsequent case law.

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