In Dickins v O2 PLC EWCA Civ 114 the Court of Appeal held that a county court judge had been entitled to hold that the psychiatric ill health suffered by an employee had been reasonably foreseeable and caused by her employer. Once the employee had explained her difficulties at work to her manager and their effects on her health, some responsibility passed to the employer. Management intervention was then required and the employee should have been sent home and referred to the employer’s occupational health department. Reference to the employer’s counselling services was insufficient in the circumstances of the case.
Once liability had been established, the Court of Appeal (albeit obiter) doubted the suggestion in Sutherland v Hatton [2002] EWCA Civ 76 that, where there were both tortious and non-tortious causes in a case of psychiatric injury, a sensible attempt at apportionment of damages should be made. The Court of Appeal’s preferred view was that it might be appropriate to discount particular heads of damage, for example, to reflect the risk that the non-tortious factors would have resulted in the employee suffering a breakdown at some time in the future in any event.
PLC Magazine 31.10.08