Apportionment Of Damages For Divisible Injuries

Case alert: BAE Systems (Operations) Ltd v M Konczak [2017] EWCA Civ 1188

In a useful judgment for insurers, the Court of Appeal has again considered the issue of apportioning claims for compensation when there are multiple extrinsic causes, with consideration to the issue of divisible and indivisible injuries. Where there are multiple causes of psychiatric injuries, attempts should be made to apportion the loss. However where the harm is indivisible, it will not be possible to undertake such an apportionment. This approach endorsed the obiter guidance given in Barber v Somerset CC [2002] EWCA Civ 76.

The Facts

BAE Systems appealed against an award of damages of £360,000 awarded by an Employment Tribunal to the Claimant in respect of sex discrimination, disability discrimination and unfair dismissal.

The Claimant was employed by BAE Systems from 1998 until her dismissal in 2007. During that time she experienced stress at work. On one occasion, her manager commented that women took things more emotionally then men.

Following this comment, the Claimant was diagnosed with occupational stress and signed off work. BAE dismissed the Claimant on the basis it was inappropriate for her to return to her old role and there were no other positions available.

The Employment Tribunal dismissed the majority of the sex discrimination claims, but found the manager's comment amounted to sex discrimination. It also found the Claimant had been unfairly dismissed and subjected to disability discrimination.

In relation to the level of damages, the Claimant acknowledged she had a history of stress and problems at work prior to the line manager's comment. However it was argued that her condition had been caused or materially contributed to by the unlawful conduct of BAE.

The tribunal found it was inappropriate to apportion damages because the psychiatric injury was indivisible and had been triggered by the comment.

Appeal

BAE argued on appeal that it was wrong for it to be liable for the entire amount, particularly given the various other factors, which had contributed to the Claimant's illness. It argued the correct approach was for the tribunal to apportion liability between these different causes.

The Court of Appeal rejected the appeal and provided guidance on the apportionment of damages for psychiatric injury caused by an employer's wrongdoing.

Where there are multiple causes for an injury, a 'sensible attempt' should be made to apportion liability. Such...