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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1384,  WLR(D) 322
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ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE LAMB QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
LORD JUSTICE TREACY
| THOMAS BROWN
|- and -
|LONDON BOROUGH OF RICHMOND UPON THAMES
Mr William Norris QC & Mr John Norman (instructed by Clyde & Co) for the Respondent
Hearing dates: 15th - 16th October 2012
Crown Copyright ©
Lord Justice Treacy:
The Judge's Findings
"I conclude that the departure of Mrs Brown was a non-tortious event which occurred after the Defendant's breach of duty and which contributed to the psychological upset experienced by the Claimant for some time after August 2003.
Turning again to Hale LJ's judgment in Hatton at paragraph 36, [Hatton v Sutherland  EWCA Civ 76:  2 All ER 1].
"Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible…"
"I have already found that the failure to implement/monitor the action plan made a material contribution to the Claimant's condition. From August onwards there was another factor at work. Can I disentangle the respective contributions to the Claimant's suffering in, say, the autumn of 2003 of the Defendant's default on the one hand and the departure of Mrs Brown on the other? I have no means of doing so.
Did the relative size of the contributions change over time? I think they must have done for these reasons:
(1) The Claimant responded well to anti-depressant medication.
(2) The psychiatrists are agreed that his prognosis after a first episode of depression would have been excellent.
(3) He normally would have been expected to return to work within months.
(4) The stress of work was removed following his retirement in 2004.
(5) Disputes over the matrimonial assets and the prolongation of these proceedings have dominated the Claimant's thinking over the last few years.
Am I satisfied that the claimed continuing loss of earnings has been caused by the Defendant's aggravation of Mr Brown's depression in the first few months of 2003? My answer is no.
Dickins v O2 Plc  EWCA Civ 1144:  IRLR 58 prohibits me from making a broad apportionment. I propose to award damages for loss of earnings for the period of one year from June 2003. This is in line with paragraph 46 of Smith LJ's judgment in Dickins…" [After a digression the judge continued] "Any continuing loss of earnings after June 2004 is not attributable, on my findings, to the default of the Defendants."
Breach of Duty
"…the overall test is still the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know…"
"Any continuing loss of earnings after June 2004 is not attributable, on my findings, to the default of the Defendants."
"It is the fact that neither in April 2003 nor at any prior time did the Claimant make complaint about the level of his pay. He did not incorporate any complaint about pay in the Action Plan nor is there any evidence of his making complaint in early 2003 whether orally or by any other means. In those circumstances I find it impossible to hold that in April 2003 such trust and confidence as the Claimant had in his employers was likely to be "…destroyed or seriously damaged" by the Defendants omission/failure/reluctance to upgrade him."
Master of the Rolls:
Lord Justice Davis:
1. Appeal allowed for reasons given in the judgment.
2. Any supplementary submissions from the parties concerning the form of order pursuant to the allowing of the appeal to be filed by 4.00pm Friday 2nd November 2012.
3. The outstanding application in a related costs appeal (B3/2011/1758/A) is adjourned sine die pending the outcome of the re-trial or other resolution of the case, with liberty to apply.
4. The parties are jointly to notify the court of the progress of the proposed re-trial every three months.
Lord Justice Treacy
26th October 2012