UK: Damages for Psychiatric Injury - the Approach Under the Discrimination Statutes

In this article we consider the decision of the Employment Appeal Tribunal in the case of Y Essa v Laing Limited - E80/0697/01 - 17th February 2003.

Mr Essa, the Appellant, was an amateur boxer who had represented Wales on a number of occasions. In order to maintain himself financially he worked as a labourer and construction worker. During 1999 he was contracted to Laing to work on the construction of the Millennium Stadium. As soon as he commenced work on site Mr Essa began to suffer petty acts of humiliation and insults. On the 28th July 1999 an employee of Laing, a foreman, said in reference to Mr Essa in front of a number of colleagues "make sure that black c…t does not wander off". Mr Essa complained to Laing about this but considered that his complaint was not taken seriously and consequently he left the site. A formal written warning was issued during a disciplinary hearing at which Mr Essa was not present.

It was Mr Essa’s case that the foreman’s abuse had upset him to the extent that it affected his health and caused him to suffer depression and consequently his boxing career was affected. He claimed that Laing, as the foreman’s employer, did not take steps as were reasonably practicable to prevent the foreman from acting in an abusive manner under Section 32(3) of the Race Relations Action 1976. The Tribunal at first instance found that there had been discrimination on the grounds of race and that following the incident of the 28th July Mr Essa did suffer with extreme depression.

Insofar as quantum was concerned, the Employment Tribunal noted "in calculating special damages we bear in mind that the Respondents are only liable for such reasonably foreseeable losses as were directly caused by the discriminating act". The Tribunal did not consider that Laing could have foreseen the extent of Mr Essa’s reaction to the discriminatory comments. They found that his reaction was "so extreme so as to have been irrational". The Tribunal noted that Mr Essa did not take positive steps to improve his condition and indeed, "took himself off medication prescribed by the doctor after only 2 weeks and did not seriously seek counselling as suggested by the doctor until 6 months had gone by, thus allowing more time for the wound to fester".

Mr Essa appealed the decision as to quantum. The question before the Tribunal was whether Mr Essa, the victim of discrimination on grounds of race, could recover compensation for losses only if they were reasonably foreseeable, or whether he could recover such losses simply by proving a causal link between the act of discrimination and the loss in question.

The Employment Appeal Tribunal noted that in this instance the statutory tort in issue was Section 54 of the Race Relations Act 1976. The Employment Appeal Tribunal held that this section was designed to protect people from race discrimination and that Parliament had not intended compensation only to be recoverable where there was a reasonable foreseeability of the harm in question having been caused, and that the statutory tort was therefore intended to allow compensation to be payable in cases where harm was caused directly. So in Mr Essa’s case, even though it was agreed that there was only one "one off" abusive comment and that the injury suffered might not be foreseeable, the comment caused Mr Essa such an injury, and he could therefore recover the losses arising from that. The dictum of Stuart-Smith LJ in Sheriff v Kline Tugs was preferred to that of the dicta of Laughton LJ in Coleman v Sky Rail.

In reaching this decision the Employment Appeal Tribunal did note that when reconsidering the question of compensation the Employment Tribunal would be able to have regard to questions of intervening causes as to the seriousness of Mr Essa’s illness, such as any unreasonable refusal or failure to seek and follow medical advice, and consequently mitigate his loss.

This case highlights the different approach applied in awarding damages for stress under one of the discrimination statutes as opposed to the approach at common law. The key to stress and psychiatric injury claims at common law is the foreseeability of the injury suffered by the Claimant. This is evidenced by Hale LJ’s judgment in Sutherland v Hatton (2002) EWCA Civ 76. At common law if the injury is not found to be foreseeable then an employer is not liable for the losses arising as a consequence of that injury. For example, in the recent case of Barlow v Broxbourne Borough Council [2003] EWHC 50 (QB), Mr Barlow’s claim for damages, as a result of suffering work related stress caused by the alleged victimisation and bullying by his employers, failed because the Judge did not consider his stress illness to be foreseeable to his employers. In this case Mr Barlow’s managers admitted to shouting and swearing at staff, sometimes in the presence of more junior employees. Mr Barlow was, for example, told in front of other employees to, "get off your arse and do your f… job" and was also called "a useless c...t". Grey LJ found "I am unable to accept that the defendant through its officers either knew or ought reasonably to have known or foreseen that the conduct complained of would cause the Claimant harm. It was not suggested on behalf of the Claimant that any of the officers had actual knowledge that such harm would result. I do not think that those officers ought to have foreseen the harm which in the event occurred … the evidence from the officers was that the Claimant appeared to them … to be a phlegmatic and laid back individual and not as someone who would be likely to crumble under pressure". In short the Judge considered that because the Claimant had not appeared to be a vulnerable individual, he had not complained to his employers, and his medical notes made no mention of stress or pressure at work during the relevant periods. As there were no overt warning signs, his psychiatric injury was not foreseeable.

The language directed at Mr Essa and Mr Barlow was equally unacceptable and both individuals suffered psychiatric injuries. However, these cases reaffirm that where an individual bases their claim for damages resulting from a psychiatric injury upon the statutory tort of discrimination, the burden of demonstrating that there was a foreseeable risk of the injury arising falls away the key question is whether discrimination is established. If it is damages will flow whereas at common law foreseeability remains the key to determining liability in such claims.

Article by Howard Watson

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