How do we value compensation for ‘injury to feelings’?

Thank you to Kate Wilson at Park Square Barristers for this post. Please follow this link to view her CV.

As was considered in the previous post, ‘injury to feelings’ (i.e. an emotional reaction falling short of a diagnosed psychiatric disorder) may be compensated for if an employee is able to bring a claim pursuant to the Protection from Harassment Act 1997. Here we consider how to approach the task of valuing awards for injury to feelings.

The starting point for the quantification of such awards are the guidelines set down by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871. Noting the difficulties presented in valuing compensation for intangible losses that are incapable of objective proof, for example subjective feelings of upset, frustration, mental distress, fear, humiliation and anguish of varying degrees of intensity, the Court of Appeal identified three broad bands of compensation for ‘injury to feelings’ (as distinct from compensation for a psychiatric injury). These were updated on 25th March 2019 and are set out in tabular form below.

BAND 1 Awards of between £900 and £8,800 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
BAND 2 The middle band of between £8,800 and £26,300 should be used for serious cases, which do not merit an award in the highest band
BAND 3 The top band should normally be between £26,300 and £44,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £44,000.

Unlike damages for personal injury, the gravity and duration of the acts themselves will influence the level of award, together with the motivation of the harassing party and the effect of the harassment on the employee, whereas personal injury damages focus entirely on the effect on the injured party. The amount awarded will depend upon the aggravating circumstances of each case. Personal injury practitioners see the Vento bands as generous compared to the damages available for psychiatric injuries as set out in the Judicial Collect Guidelines (14th Edition). How, therefore, do we value claims for injured feelings and psychiatric harm suffered by the same individual in response to a campaign of harassment?

This was the question for the Court of Appeal in Martins v Choudhary [2007] EWCA Civ 1379. Some courts have made separate awards, whereas others provide a global award. The Court of Appeal concluded that there should be no hard and fast rule about whether separate awards should be made. There may be some cases where it is more just and convenient to assess compensation covering both aspects. However, and particularly where the psychiatric injury is more substantial, it may be more appropriate to make a separate award to understand the reasoning underpinning the judgment. This is especially so if the judge is to avoid falling into error by compensating the employee twice on the same basis, a principle known as ‘double recovery’.

Occasionally the conduct of the defendant in non-harassment claims may be so atrocious that an award of general damages alone would be insufficient. In such rare instances justice may be achieved by the making of an additional award of aggravated damages to compensate for injured feelings as well. In the modern slavery case of AT and Others v Dulghieru and Another [2009] EWHC 225 (QB), in which the claimants had been trafficked into the sex industry, Mr Justice Treacy stated “In my award of general damages, I have included an element to cover the psychiatric harm suffered. That however, is to be distinguished from the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the Defendants.” He then went on to make an enhanced award to account for the appalling actions of their traffickers.

In conclusion, the Vento guidelines can produce sizeable awards where the harassed employee has not endured psychiatric harm. Damages for injury to feelings arising out of harassment in the workplace may take into account both the nature of the conduct complained as well as its effect. Making an award for both injury to feelings and a psychiatric injury is not only permissible, but in the most outrageous cases may be desirable.

In the next post we will consider the availability of damages for the loss of congenial employment.

How do we define an injury of the mind?

English law suffers from a Latin hangover, as illustrated by the antiquated maxim de minimis non curat lex, literally meaning “The law does not concern itself with trifles”. As we shall see, psychiatric injury claims are not exempt from the de minimis principle. Injuries to a person’s mental health caused by the circumstances of his or her employment are frequently referred to by lawyers as ‘stress’ claims, which is an oxymoron as stress is not a psychiatric condition and therefore cannot give rise to a claim. Indeed, stress is an essential aspect of the human condition, and may just as equally be beneficial.

In truth, anxiety and depression are ordinary human emotions, so said Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410. He continued – “So, the first hurdle which a plaintiff claiming damages… must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.” A decade later, in Hicks v Chief Constable of the South Yorkshire Police [1992] All ER 65, he repeated “it is perfectly clear that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded”. This was applied most recently by Mr Justice Stewart, who in the Kenyan Mau Mau litigation held that fear alone does not amount to personal injury: see Kimathi v FCO [2018] EWHC 1305 (QB).

The term ‘nervous shock’ is one used by lawyers to describe a category of cases concerning those who have been traumatised by terrible events, whether as a primary victim or as a witness. Speaking in Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, Lord Ackner explained “‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period in time of more than gradual assaults on the nervous system.” Again, in Page v Smith [1996] AC 155, Lord Keith defined it as “a reaction to an immediate and horrifying impact, resulting in some recognisable psychiatric illness. There must be some serious mental disturbance outside the range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear.” A simple application of the principle was seen in Reilly v Merseyside RHA [1995] 6 Med LR 246, in which the unsuccessful claimant sought damages for claustrophobia and fear suffered when trapped in a lift. Ordinary emotional responses to unpleasant experiences of even the most serious type cannot found a claim for damages.

Likewise, distress brought about by the apprehension of a physical injury that has not materialised, and may never do so, is not actionable. This was the conclusion of the House of Lords in Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39, in which it was held that the inhalation of asbestos dust and fibres leading to innocuous pleural plaques could not give rise to a claim for anxiety arising from concern over the possibility of suffering a future disease.

In the workplace context employers are under no obligation to protect their staff from normal reactions. An employee who suffers no more than distress at work, falling short of a psychiatric injury, cannot recover damages for negligence. As was explained in Fraser v State Hospitals Board for Scotland [2000] ScotCS 191 (11 July 2000) “…the duty is only to take reasonable care to prevent psychiatric harm. It is not to protect an employee from unpleasant emotions such as grief, anger and resentment or normal human conditions such as anxiety or stress. These do not involve and form of ‘injury’ at all.”

In Hussain v Chief Constable of West Mercia Constabulary [2008] EWCA Civ 1205 the claimant sought damages from the police for misfeasance in public office by failing to respond to his numerous calls for assistance. As it is tort that is non-actionable without proof of damage, the Court of Appeal was concerned with the question of whether the superimposition of transient “somatised physical symptoms of anxiety such as numbness and discomfort in the left arm and left leg” was sufficient. Perhaps unsurprisingly, it was unanimous in its conclusion that this did not amount to material damage.

The practical application of this principle is straightforward. To advance a claim it is necessary first to obtain expert psychiatric evidence diagnosing an illness recognised by a consensus of professional opinion, such as those contained within The World Health Organisation’s Classification of Mental and Behavioural Disorder (ICD-10), or the American Psychiatric Association’s statistical diagnostic criteria (DSM 5). Any psychiatric injury will suffice, however peculiar: Hinz v Berry [1970] 2 QB 40. In reality the psychiatrist’s first port of call is the patient’s medical history. Absent any past GP attendances presenting with symptoms of psychological illness it is likely that the individual’s condition will be seen as ‘sub clinical’, for which read non-actionable.

If there’s one thing that lawyers enjoy more than Latin then it’s laws that they can disregard. Having illustrated the rule, therefore, in the next post we shall examine its exceptions.

 

The scale of the problem.

Some say that occupational stress is the back injury of the 21st century, such is its prevalence. Looking at the statistics published by the Labour Force Survey on 31st October 2018 it is easy to understand why.

  • 595,000 workers were suffering from work-related stress, depression or anxiety in 2017/18.
  • 4 million working days were lost as a result.
  • It accounted for 44% of all work-related ill health cases and 57% of all working days lost due to ill health.
  • The economic cost is around £8.5 billion a year.

Don’t simply take my word for it. The General Secretary of the TUC, Frances O’Grady, says: “Work-related stress is a growing epidemic. It’s time employers and the Government took it more seriously. Warm words are not going to fix this problem. Managers need to do far more to reduce the causes of stress and support employees struggling to cope. This means tackling issues like excessive workloads and bullying in the office. Toxic workplaces are bad for staff and productivity.”

Dr Carole Easton, chief executive of Young Women’s Trust, says: “Many young people, especially young women, are facing huge pressures in the workplace and mental health concerns are skyrocketing. Low pay, insecure work and workplace inequalities are leaving young women struggling to make ends meet and impacting on their mental health. When we have surveyed young people, half of young women said their work has had a negative impact on their mental health.”

Duncan Spencer, from the Institution of Occupational Safety and Health, says: “Evidence continues to grow about the negative impacts of poor mental health at work. Poor mental well-being caused by stress, depression and anxiety accounts for a very high proportion of sickness absences in the UK, despite legal and moral imperatives for employers to manage psychosocial risks in the workplace.”

Courtesy of EU Directive 90/269/EEC the 1990’s saw a revolution in our approach to manual handling in the workplace, which brought prosperity to the manufacturers and retailers of lifting and carrying equipment, and created a regiment of lawyers keen to capitalise on avoidable back injuries suffered at work. This blog is a call to arms to lawyers. Until employers are fearful of receiving a letter of claim then the problem will not be abated.

Not all work-place stress gives rise to an actionable claim, but many potential claims are being missed though ignorance. This blog aims to contribute to a greater understanding of what constitutes a viable claim, and the measures that managers should adopt to protect their workforce from becoming psychiatrically damaged by their role or environment.