Personal injury; work-related stress; foreseeability and apportionment. Hale LJ set out sixteen 'practical propositions' at [43] governing employer liability for psychiatric injury caused by occupational stress; the threshold question is whether injury to this particular employee was reasonably foreseeable. Proposition 15 (where harm has more than one cause the employer pays only for the proportion attributable to his wrongdoing unless the harm is truly indivisible, and it is for the defendant to raise apportionment) and proposition 16 (damages take account of any pre-existing disorder or vulnerability and the chance the claimant would have succumbed anyway) were obiter, apportionment not arising in any of the four conjoined appeals. Proposition 15 was doubted obiter in Dickins v O2 plc and the conflict resolved in Hatton's favour in BAE Systems (Operations) Ltd v Konczak at [70]. The neutral citation is captioned Sutherland v Hatton; one conjoined appeal went to the House of Lords as Barber v Somerset CC [2004] UKHL 13. [Summary not yet checked against the judgment.]
Doubted by Dickins v O2 plc [2008] EWCA Civ 1144 (2008-10-16)
Obiter. The Court of Appeal later preferred Hatton: BAE Systems v Konczak [70].
Followed by BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188 (2017-07-31)
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Personal injury; work-related stress; apportionment. The Court of Appeal dismissed the employer's appeal against liability for psychiatric injury caused by excessive stress at work [1], [51]. The employer had a clear indication of impending illness, and a mere suggestion of counselling was not an adequate response [24], [27]. This was not a loss of a chance case: the breach plainly made a material contribution to the breakdown [37]-[38]. Smith LJ, obiter and without argument, doubted Hale LJ's approach to apportionment in Hatton: where the tort made a material contribution of unquantifiable extent to an indivisible injury, across-the-board apportionment is inappropriate, though some heads of damage may be reduced for the risk of non-tortious loss [46]. Neither party challenged the judge's 50% apportionment, so she said no more [2], [48]. A second member of the court shared her concern [53]; the third offered no comment [51]. In BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188 at [70] the Court of Appeal held that, so far as these observations differ from Hatton, Hatton is to be followed.
Not followed by BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188 (2017-07-31)
Cited by
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Health and safety; s.100(1)(d) ERA 1996; coronavirus; reasonable belief; serious and imminent danger. The EAT dismissed the appeal: the tribunal had not erred in finding that the dismissal of an employee who stayed away from work during the first lockdown was not automatically unfair [49]. The circumstances of danger need not be generated by the workplace itself [31], and an employee could reasonably believe in a serious and imminent danger existing outside the workplace that prevents his return [44]. But genuine concern about the pandemic did not mean the claimant believed there was such a danger preventing his return: the tribunal legitimately found he held no reasonable belief of that kind, at work or at large [44], [46]. He could in any event reasonably have averted the danger by a mask, distancing and handwashing [48]. Whether circumstances of danger must exist in fact, or a reasonable belief in them suffices, was left open [30].
Affirmed by Rodgers v Leeds Laser Cutting Ltd [2022] EWCA Civ 1659 (2022-12-20)