The Issues:

The Court of Appeal was required to consider the correct approach to adopt when considering the level of compensation that may be due in cases where an injury has multiple causes.

The Claimant was dismissed from her employment with the Defendant in 2007 following a period of absence due to work related stress. At first instance, the Employment Tribunal which upheld several of the complaints made, also held that the primary comment that was subject of complaint was an act of sex discrimination. More importantly, the Tribunal held this principal comment had caused the Claimants illness and that BAE was liable for all losses flowing from it.

BAE appealed that decision on the basis that it was wrong in principle for it to be liable for all of the losses flowing, in particular given various other events which they were not legally liable for and which they maintained, contributed to the Claimant’s ill health.

Held:

In rejecting the appeal, it was held that there are two ways in which compensation may be reduced when there should be an apportionment of liability.

Firstly, where an injury has multiple causes, a “sensible attempt” must be made to apportion liability accordingly, holding that apportionment is only appropriate if the injury is ‘divisible’.

Secondly, in cases where a claimant has a pre-existing vulnerability or disorder, the level of compensation may be reduced to reflect the possibility that injury would have been suffered even in the absence of an employer’s conduct.

Comment:

This guidance should help to assist practitioners in this difficult area of the law, in particular as whether a psychiatric illness is divisible is a question of fact in each case.

It remains that a psychiatric  injury may be divisible if, for example, the complainants pre-existing illness was exacerbated or accelerated.

However, in Mrs Konczak’s case, whilst there may have been multiple factors at play, there was a specific incident which “broke the camels back” and pushed her over the edge into mental illness. The Tribunal had been entitled to find that the injury was not therefore divisible.

Practitioners should also note that important guidance was given by the Court regarding expert evidence required in such cases. Experts should always consider whether a claimant had a pre-existing diagnosable disorder and also assess the level of risk that a Claimant would have developed such illness or injury as a result of any cause.

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