Case alert: BAE Systems (Operations) Ltd v M Konczak  EWCA Civ 1188
In a useful judgment for insurers, the Court of Appeal has again considered the issue of apportioning claims for compensation when there are multiple extrinsic causes, with consideration to the issue of divisible and indivisible injuries. Where there are multiple causes of psychiatric injuries, attempts should be made to apportion the loss. However where the harm is indivisible, it will not be possible to undertake such an apportionment. This approach endorsed the obiter guidance given in Barber v Somerset CC  EWCA Civ 76.
BAE Systems appealed against an award of damages of £360,000 awarded by an Employment Tribunal to the Claimant in respect of sex discrimination, disability discrimination and unfair dismissal.
The Claimant was employed by BAE Systems from 1998 until her dismissal in 2007. During that time she experienced stress at work. On one occasion, her manager commented that women took things more emotionally then men.
Following this comment, the Claimant was diagnosed with occupational stress and signed off work. BAE dismissed the Claimant on the basis it was inappropriate for her to return to her old role and there were no other positions available.
The Employment Tribunal dismissed the majority of the sex discrimination claims, but found the manager's comment amounted to sex discrimination. It also found the Claimant had been unfairly dismissed and subjected to disability discrimination.
In relation to the level of damages, the Claimant acknowledged she had a history of stress and problems at work prior to the line manager's comment. However it was argued that her condition had been caused or materially contributed to by the unlawful conduct of BAE.
The tribunal found it was inappropriate to apportion damages because the psychiatric injury was indivisible and had been triggered by the comment.
BAE argued on appeal that it was wrong for it to be liable for the entire amount, particularly given the various other factors, which had contributed to the Claimant's illness. It argued the correct approach was for the tribunal to apportion liability between these different causes.
The Court of Appeal rejected the appeal and provided guidance on the apportionment of damages for psychiatric injury caused by an employer's wrongdoing.
Where there are multiple causes for an injury, a 'sensible attempt' should be made to apportion liability. Such apportionment is only appropriate for 'divisible' injuries, such as when an employer's conduct exacerbated a pre-existing condition.
Divisibility of injury is a question of fact. In the present case, given a diagnosable illness only developed following the 'comment', it was appropriate to find that although the injury may have been caused by multiple factors, it was indivisible.
Additionally in cases of pre-existing vulnerability, compensation may be reduced to reflect the possibility the claimant would have suffered the injury irrespective of the employer's conduct. However in this case the grounds of appeal did not raise the issue of whether the employee would have suffered a similar breakdown triggered by an alternative cause. It was therefore not appropriate to determine that issue and the award therefore stood.
What can we learn?
- Courts are prepared to make an attempt to consider, in detail, each particular fact, scenario and facet of a claim to determine whether the injury should be considered divisible or indivisible. Whilst each case will turn on its own facts, this judgment is a helpful insight into how courts can determine cases where there is a close temporal connection between diagnosis of "psychiatric" injury and breaches by an employer, regardless of pre-existing non-work related issues.
- Whilst this decision was in the context of an Employment Tribunal, the application of the law in this Appeal could also apply directly to other cases, including historic and present day abuse / failure to remove cases.
- Within the forum of abuse / failure to remove cases claimants sometimes argue that long term abuse results in changes to brain structure with associated long term consequences. Where these changes develop as a result of other non-tortious psychiatric and environmental factors in addition to the abuse, this decision provides the opportunity to raise arguments in respect of divisibility.
- Whilst in this instance, the Defendant's appeal was unsuccessful; this should not deter defendants and their insurers from maintaining a robust stance on the application of divisibility to psychiatric injuries. Such arguments, where successful and result in apportionment of a divisible injury, could lead to significant reductions in the overall level of damages awarded.
- Expert evidence will be key to supporting robust defence strategy in respect of arguments around the divisibility of injuries claimed and as such should be at the forefront of any defence strategy from the outset. Helpfully Irwin LJ provided important guidance regarding the expert evidence required in such cases. He emphasised that experts should always consider whether a claimant had a pre-existing diagnosable disorder prior to the tort. In addition they should routinely assess the risk a claimant would have developed an injury as a result of another cause. Such level of expert direction will greatly assist the court in determining the divisible nature of any claim.
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