Kennedy v London Ambulance Service NHS Trust

Where a defendant’s breach makes a material contribution to an indivisible psychiatric injury, damages are not apportioned across the contributing causes. The claimant is compensated for the whole injury, subject to ordinary causation principles. A claimant’s pre-existing vulnerability does not reduce liability where the breach materially causes the subsequent disorder. The court must distinguish an indivisible injury from divisible additional harm.

For future loss of earnings, the multiplier/multiplicand method remains the ordinary approach. It should be displaced only where it produces an obviously unreal result. Adjustments to reduction factors involve broad judgment, because mathematical precision cannot eliminate uncertainty about future employment and disability.

The claimant suffered carbon monoxide poisoning while working as a solo responder for the defendant. Liability was admitted, and the trial concerned quantum. The principal issues were whether the exposure caused the claimant’s continuing PTSD, whether her pre-existing vulnerability or later workplace events broke the causal link, her prognosis, and the appropriate assessment of future financial loss.

The defendant argued that the claimant’s psychiatric difficulties were substantially attributable to an underlying vulnerability and that any harm should be apportioned. The court also considered whether future earnings should be assessed by a Smith v Manchester award or by the multiplier/multiplicand approach.

1. Liability and causation. The claim succeeded on quantum. The claimant developed PTSD as a result of the carbon monoxide incident and continued to suffer from it. The incident was the causative event which materially altered her ability to work. Her pre-existing vulnerability did not establish that the same disorder would probably have occurred in any event.
2. Indivisible psychiatric injury. The ordinary rule that a tortfeasor takes the victim as found applied. The court distinguished KR v Bryn Alyn (Holdings) Ltd, [2003] EWCA Civ 84, because that case concerned divisible psychological injury in a person already psychiatrically damaged. The principles in Bailey v Ministry of Defence, [2008] EWCA Civ 883, and Dickens v O2 PLC, [2008 EWCA Civ 1144, were applied: where the causative event makes a material contribution to an indivisible injury, across-the-board apportionment is inappropriate. The same principle had been endorsed in Williams v The Bermuda Hospitals Board, [2016] UKPC 4.
3. Future prognosis and earnings. With specialist treatment, including CBT, the claimant was expected to return to less stressful employment after about two years. The multiplier/multiplicand approach was retained. Following Billett v Ministry of Defence, [2015] EWCA Civ 773, the court treated adjustment of the reduction factor as a matter of broad judgment. A Smith v Manchester award was not required because the conventional approach did not produce an obviously unreal result.
4. Damages. The court awarded £28,000 for general damages, £159,015.48 for future loss of earnings, £25,000 for pension loss, and the other agreed or assessed sums shown in the schedule. Judgment was entered for the claimant in the net sum of £275,057.12.