Brown v London Borough of Richmond Upon Thames

In a work-stress negligence claim, loss of earnings cannot be cut off on a broad-brush basis merely because a later non-tortious event contributed to psychiatric injury. The court must compare the claimant’s actual position with the counterfactual position absent breach, and make clear findings on whether the later event would independently have caused loss of work. The interaction between tortious and non-tortious causes, including vulnerability and expert evidence, requires careful analysis. An appellate court should remit the issue where the trial reasoning and findings do not support the conclusion. A clear trial finding that breach began at a particular date may implicitly reject an earlier alleged breach. General action-plan language does not, without more, establish an entitlement to regrading or breach of the implied term of trust and confidence.

The appellant was employed by the respondent local authority for many years and suffered a psychiatric breakdown in June 2003. His claim alleged negligence in failing to protect him from work-related stress. His Honour Judge Lamb QC found a breach in early 2003, awarded damages including one year’s loss of earnings, and treated the subsequent breakdown of the appellant’s marriage as the dominant cause of later loss.

The appellant appealed on four grounds: the date of breach, the causal cut-off for loss of earnings, the relevance of the Working Time Directive and Working Time Regulations 1998, and the refusal to award a higher pay grade. The central issue was whether the findings and reasoning supported limiting loss of earnings to 30 June 2004.

Appeal allowed in part. Lord Justice Treacy gave the judgment, with the Master of the Rolls and Lord Justice Davis agreeing. The appellant succeeded only on the causation and loss-of-earnings issue.

1. The applicable employer’s duty in a work-stress case was correctly identified. It is assessed by reference to the reasonable and prudent employer taking positive thought for workers’ safety in light of what the employer knows or ought to know. The judge’s clear finding that breach arose in early 2003 implicitly rejected the alleged earlier breach in 2000. That finding had a substantial evidential basis, and the evidence did not demonstrate compelling error. The first ground was rejected. The relevant authorities included Barber v Somerset County Council [2004] 1 WLR 1089 and Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776.
2. The trial judge’s treatment of causation after June 2003 was inadequate. Where tortious work-related psychiatric injury and a later non-tortious event both contribute, the court must ask what would have happened absent the breach and determine whether the non-tortious event would independently have caused the claimant to lose work. It must address the interaction between the causes, the claimant’s vulnerability, and the expert evidence. A bare conclusion that the later event became the sole cause of loss was insufficient.
3. The court expressly left unresolved the potential difference between the apportionment approach discussed in Hatton v Sutherland [2002] EWCA Civ 76 and the approach attributed to Smith LJ in Dickins v O2 Plc [2008] EWCA Civ 1144. That issue should await a case in which it is truly engaged.
4. The working-time point made no material contribution to the appeal. The court made no finding on breach of the Working Time Regulations 1998 and treated the unchallenged position concerning the Working Time Directive and Regulation 4 as taking the issue no further.
5. The action plan’s general references to restructuring, workload and work-life balance did not establish a promise of regrading. In the circumstances, including the absence of any complaint about pay or grading, the implied term of trust and confidence was not breached. The grading ground was rejected, applying Woods v WM Car Services (Peterborough) Limited [1981] ICR 666.
6. The loss-of-earnings issue after 30 June 2004 was remitted to the trial judge for further consideration. The related costs appeal was adjourned sine die pending retrial or other resolution.

• Court of Appeal (Civil Division) — Appeal allowed in part for the reasons given in the judgment; the issue of loss of earnings after 30 June 2004 was remitted. The related costs appeal was adjourned sine die.
• Central London Civil Justice Centre — His Honour Judge Lamb QC, by order dated 9 June 2011, awarded the appellant £35,615.03, including damages for psychiatric injury and loss of earnings limited to 30 June 2004.