Massey v Unifi [2007] EWCA Civ 800

[2007] EWCA Civ 800Case No A2/2006/2034(A)+2034
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
UKEAT/0223/04/MAA
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2007
Before
LORD JUSTICE PILLLORD JUSTICE WALLLORD JUSTICE MAURICE KAY
Between
MASSEYAppellantUNIFIRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr James Laddie (instructed by Ford & Warren) for AppellantMr Philip Jones (instructed by Simpson Millar) for RespondentHearing Hearing date : 1 + 2 May 2007
JudgementLord Justice Maurice Kay :
[1]By section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992, a member of a trade union has the right not to be unjustifiably disciplined by the union. Jurisdiction in relation to the determination of unjustifiable discipline is conferred upon Employment Tribunals (section 66). However, upon a finding of unjustifiable discipline, an Employment Tribunal had no jurisdiction as to remedy prior to 31 December 2004. That was vested in the Employment Appeal Tribunal, exercising original rather than appellate powers. This case was governed by that somewhat odd procedure which has now been superseded so that Employment Tribunals have been given jurisdiction in respect of both liability and remedy (Employment Relations Act 2004, sections 34 and 57, and Schedule 2).[2]The appellant, Mrs Stella Massey, was found by an Employment Tribunal to have been subjected to unjustifiable discipline by her union, UNIFI, which has since become part of the respondent, Amicus (“the Union”). The decision of the Employment Tribunal was on 9 January 2004. It upheld three of seven complaints made by Mrs Massey. On 3 August 2004, the Employment Appeal Tribunal allowed in part an appeal by the Union with the effect that now two of the complaints remain established. The unjustified discipline is in the form of(1) a motion of no confidence in Mrs Massey passed by the Union’s Royal Bank of Scotland National Company Committee (NCC) on 25 September 2002 and(2) a decision by the Appeal Committee (AC) made on 7 January 2003 debarring her from holding office in the Union for a period of two years.[3]Mrs Massey joined the Union in 1964 and became actively involved in it. She was a member of its National Executive Committee from 1992 until 7 January 2003. She fell into dispute with her colleagues over the appointment of trustees to the Royal Bank of Scotland Pension Fund. Until 2002 the Union had nominated trustees. However, in that year it negotiated an agreement with the Bank that thenceforth it would suggest “preferred candidates” for election as trustees. Mrs Massey did not put herself forward for consideration as a preferred candidate. At a meeting of the NCC (which Mrs Massey did not attend) it was decided that three prominent members of the NCC would be put forward as the preferred candidates. They were all working as opposed to retired members of the Pension Fund. Mrs Massey had retired from the Bank in 2001. In the event, 91 candidates stood for election, including Mrs Massey. They were each required to submit a pen portrait for distribution to the electorate. Mrs Massey submitted one which, after amendment by the Bank, read:
“Pensions are under increasing attack. Until now we have had ‘Nominated Trustees’. We now have ‘Preferred’ candidates, but I urge you to look beyond these and vote for an independent trustee. While working part-time for Nat West I have also successfully managed a property investment business and a share portfolio. I have been deeply involved in pensions issues, and have spent ten years on NWSA Management Committee, UNIFI Executive and Nat West European Council. I recognise the value of independent judgement. The Pension Fund does not belong to the Bank, the Unions, or even the Pensioners’ Committee. It actually belongs to you, the staff, ex-staff and pensioners, to whose interests I offer total commitment.”
[4]The Bank distributed the pen portraits to the electorate on 2 September 2002. Ms Shenton – one of the preferred candidates and the chair of the NCC – complained about Mrs Massey. On 6 September, Mr Ed Sweeney, the General Secretary of the Union, wrote to Mrs Massey as follows:
“Dear Stella It has been brought to my attention that you are standing as an independent candidate in the current election for Member Nominated Trustees of the RBS Pension Fund. I understand that you were present at several of the Royal Bank of Scotland National Company Committee and General Purposes Committee meetings where decisions were taken on nominating the Union’s preferred candidate in these elections. I also understand that at no time during this process did you seek a nomination as the Union Preferred Candidate in these elections. Furthermore, you did not inform your National Company Committee colleagues of your intention to stand as a Member Nominated Trustee. Given your position as an NEC member representing the Royal Bank National Company Committee, I am requesting that you withdraw your nomination forthwith.”
[5]There followed what the Employment Appeal Tribunal described as “strong-minded correspondence” between Mrs Massey and Mr Sweeney. Ms Shenton and others pressed their complaints and, on 25 September, the NCC passed the No Confidence motion.[6]All of the preferred candidates were duly elected. Of the unsuccessful candidates Mrs Massey received the highest number of votes. The complaints about her were then considered by the AC on 7 January 2003. She was not able to attend but the AC proceeded in her absence. She had provided a written submission. Nevertheless, the AC found the complaints proved and debarred Mrs Massey from holding any office in the Union for two years.[7]On 14 January 2003 Mrs Massey saw her general practitioner and complained of “anxiety” and “mild panic” in the context of “problems with Union” which had been in existence “since September”. The GP notes refer to subsequent consultations and detail stress, anxiety and insomnia until August 2003. The doctor certified her condition until October of that year.[8]On 3 April 2003 Mrs Massey presented an originating application to the Employment Tribunal, complaining of unjustified discipline. I have recounted how her complaints were processed with the result that, in the end, two were sustained – the No Confidence vote and the two year bar from holding office. Pursuant to the two-stage procedure which then existed, she then made an application to the EAT for compensation. That application was due to be heard on 25 November 2004 but, sadly, Mrs Massey suffered a stroke on 15 November and the hearing was adjourned. It did not take place until 18 and 19 July 2006, at which time she was still unfit to attend and give evidence in person. On 7 September 2006 the EAT (HHJ Peter Clark, Mr A E R Manners and Mr D Welch) awarded compensation in the sum of £17,000.[9]The figure of £17,000 was arrived at by aggregating £7,500 in respect of injury to feelings and £12,500 in respect of damages for personal injury and then discounting the total of £20,000 by 15% by reference to Mrs Massey’s contribution pursuant to section 67(7) of the 1992 Act. The figure of £12,500 was the result of an apportionment exercise, the details of which will have to be considered later. The EAT declined to award a sum by way of aggravated damages. Virtually the whole of the approach of the EAT is challenged by one side or the other on this appeal and cross-appeal.

The statutory provisions

[10]The relevant provisions of the 1992 Act are in the following terms:
“64 (1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union … 67 (5) The amount of compensation awarded shall, subject to the following provisions, be such as the Employment Appeal Tribunal considers just and equitable in all the circumstances … (7) Where the Employment Appeal Tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding. (8) The amount of compensation shall not exceed [£60,100] … and … shall not be less than [£5,600].” (7) Where the Employment Appeal Tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding. (8) The amount of compensation shall not exceed [£60,100] … and … shall not be less than [£5,600].”

Issue 1: injury to feelings

[11]The approach of the EAT to injury to feelings is set out in these two paragraphs from the judgment. “19 … in making our assessment we must be careful to disentangle the two relevant tortious acts from other events for which the claimant is not entitled to be compensated but which in fact have contributed to her injury to feelings. In particular, the five other complaints of unjustifiable discipline which failed; her complaints of breach of the Union rules now before the Certification Officer; the stress of that and the present litigation; the criticism and anger levelled at her by her colleagues on the NCC after she put herself forward in the Pension Trustee election without informing them of her intentions and the contents of [the] pen-portrait which the [ET] found, albeit made in good faith, challenged the impartiality of the preferred candidates drawn from the NCC. Finally, we discount from our assessment the apparent ostracism of the claimant by her fellow members when she attended the TUC in September 2004. 20 On the other hand we accept … that the claimant, whose standing in the Union and participation in its affairs was of great personal importance to her, that she was, in Dr Sambrook’s view, mortified by what happened to her on the two occasions of unjustified discipline; being barred from office was a serious event from her perspective; she felt a sense of frustration that the wrongs done to her were not put right and what followed was a cumulative process. She received no apology from the Union.”[12]The EAT considered the guidance in Vento v Chief Constable of West Yorkshire Police (No.2) [2003] ICR 318, rejected the figures submitted on behalf of the parties (£20,000 / £4,000) and awarded £7,500.[13]In Vento, Mummery LJ, giving the judgment of the Court of Appeal, identified three broad bands of compensation for injury to feelings in discrimination cases in these terms (at para 65):
“(i) The top band should normally be between £15,000 and £25,000. 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 … Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. (ii) The middle band of between £5000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. (iii) Awards of between £500 and £5000 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.”
[14]He added (at para 66):
“There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”
[15]Mr Laddie submits that the figure of £7,500 is too low. He makes essentially four submissions:(i) that the EAT failed to take the medical evidence of injury to feelings into account;(ii) that it wrongly excluded the fact that the stress generated by the litigation had contributed to the injury to feelings;(iii) that it wrongly excluded the injury to feelings caused by being ostracised at the TUC; and(iv) the figure of £7,500 was perversely low in any event.[16]In many cases of injured feelings, there is little or no medical evidence going to the issue. As was observed in Vento (at para 50), subjective feelings of “upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof”. Many of them are not susceptible to medical diagnosis or categorisation, although some are. It is the absence of expert verifiability that is one of the reasons for a need for judicial caution, although, as was also observed in Vento (at para 51), “hurt feelings are none the less real in human terms”. In the present case, Mr Laddie cannot and does not say that the EAT ignored all medical opinion in relation to Mrs Massey’s injured feelings. In paragraph 20 of its judgment, it took account of the evidence of Dr Sambrook that she was “mortified” by what happened to her on the two occasions of unjustifiable discipline. “Mortified” is, it seems to me, a strong word for a medical witness to use. Mr Laddie’s complaint is that, unusually in the context of injured feelings, the EAT had before it all the notes of the general practitioner, from which it could be seen that Mrs Massey’s anxiety and stress were being contemporaneously documented from 14 January 2003 (just a few days after the barring from office); the notes referred to anxiety “since September – problems with union”; they detail sick notes from January to October 2003, with references to “tribunal” both before and after proceedings were commenced in April 2003; and they also establish a lack of stress and anxiety at all times before the unjustified discipline save for an entry in March 2000 which seems to relate back to a recent bereavement. In my judgment, it is surprising that the EAT did not refer to the notes of the general practitioner because they do at least flesh out the description of “mortification”. The general practitioner was sufficiently concerned to sign a series of certificates and also to prescribe anti-depressant medication. Mr Jones suggests that one reason why the EAT did not refer to the general practitioner notes may be that it thought them more relevant to litigation stress, which it proceeded (properly, according to Mr Jones) to discount.[17]Should litigation stress have been discounted? Mr Laddie submits not. Litigation stress is commonplace. Where it is provoked by the exceptionally unreasonable attitude of the opposing party towards the litigation, it can justify an additional award of aggravated damages: see Zaiwalla & Co v Walia, considered in relation to issue 2, below. However, litigation stress which is caused or increased by less reprehensible conduct in the litigation on the part of the opposing party is less easy to accommodate under the conventional heading of injury to feelings. The EAT decisions cited by Mr Laddie – Orlando v Didcot Power Station Sports and Social Club [1996] IRLR 262 and Carney v Rouf and Islam (unreported, 2 November 2004) – are more illustrative of the extent of the injured feelings not having been mitigated by an apology than of litigation stress being a positive or separate element in the compensation for injured feelings. On the other hand, it would be perverse to assume that admissibly injured feelings were totally replaced by inadmissible litigation stress on a given day at the commencement or a later stage of the proceedings. What is important is the duration and intensity of the injury to feelings that is the result of the wrongful act or acts. In the present case, there is no doubt that Mrs Massey’s feelings remained injured and significantly injured by the unjustified discipline for a considerable time. If the EAT had considered that they had given way to litigation stress by or soon after April 2003, that would have been an oversimplification.[18]The next disputed matter is the ostracism at the TUC. I do not doubt that Mrs Massey was hurt when some members of the Union apparently ostracised her when she attended the TUC conference in September 2004. Perhaps if Mrs Massey had been fit enough to give evidence, we would have had a clearer picture of these events. In the event, the evidence is quite sparse. It comes principally from Mr Massey. Although it was accepted by the EAT, it contained no detail identifying those involved or their precise motives. Mr Laddie submits that the EAT discounted the ostracism because it felt bound to do so as a matter of law and that it thereby fell into legal error because it misunderstood Bradley v NALGO [1991] ICR 359. I do not agree with that analysis. It seems to me that the EAT discounted the ostracism as a matter of fact rather than on any legal basis because the understandable gaps in the evidence left it not knowing who the ostracisers were or why they behaved as they did. The mere fact that they were members of the Union was insufficient for the EAT to infer that the ostracism bore a sufficient causal connection to the unjustified discipline. I do not consider that that was a legal error.[19]Finally, Mr Laddie submits that the award of £7,500 was perversely low and suggests that it should have been at least twice as much, even without regard to the other elements of which he complains.[20]Where does all this lead? I accept that there is force in Mr Laddie’s submission about the medical evidence, particularly the general practitioner’s notes. If properly considered, they ought to have led the EAT to find that there was relevant injury to feelings of considerable intensity and duration. Moreover, it is self-evident that for a long time it was primarily the result of the unjustified discipline. Just as (we shall later see) the stroke would not have happened in 2004 but for the unjustified discipline, so the feelings would not have been so injured but for it. On the other hand, I would support the approach of the EAT to litigation stress on the ground that it fell short (perhaps only marginally) of attracting aggravated damages. For the reasons set out above, I also find no legal error in the approach to ostracism. Standing back, it seems to me that the EAT correctly placed the injury to feelings in the middle band suggested by Vento. That raises the question whether it is open to this Court to interfere with the award in the light of our unwillingness to do so simply on the basis of slight disagreement.[21]I have come to the conclusion that the EAT was wrong to assess the figure so far down the bracket of the Vento medium-range. The medical evidence to which it did refer – “mortified” – was itself suggestive of intensely injured feelings and their duration was amply established by the material which it sought to have considered, namely the general practitioner’s notes. Although I tend to agree with Mr Jones, that, in some respects, the unjustified discipline of a union member arising out of policy disagreements will be less likely to result in a high award of compensation for injured feelings than will be appropriate in many cases of race or sex discrimination, there are aspects of the present case which demonstrate that it is about intense and prolonged injury to feelings, albeit falling short of the top Vento category. In my judgment, it was a legal error not to place the case at or near the top of the middle band and I would increase the award for injured feelings to £12,500.

Issue 2: aggravated damages

[22]It was common ground before the EAT, as it is on this appeal, that there are circumstances in which a victim of unjustified discipline can recover aggravated damages under section 67(5), by analogy with the established law in race and sex discrimination cases. The judgment of the EAT listed the matters relied upon by Mrs Massey in support of her claim for aggravated damages as follows (at para 23):
“(1) In disciplining the claimant for the pen portrait, the Union was punishing her for participating in the democratic process underpinning its foundations … (2) The correspondence discloses a concerted campaign to ‘have the claimant’s head’ and … the General Secretary was aware of it. (3) The act of unjustifiable discipline on 25 September was aggravated by the failure to give notice to the claimant of the no confidence motion … (4) The finding of the Leeds ET … that part of the reason why the claimant was disciplined by the [Appeal Committee] was that she had raised procedural complaints [ie to the Certification Officer]. (5) In conducting this litigation the [Union] had (a) raised an issue before the ET as to the claimant’s good faith, an issue on which the Union failed and, submits Mr Laddie, was bound to fail and (b) that having suggested in his witness statement that the claimant had shown contempt for the Union in failing to engage with the internal disciplinary process, Mr Sweeney then withdrew those parts of his written evidence under cross-examination. We agree with Mr Laddie that in this respect Mr Sweeney proved a less than satisfactory witness. (6) The failure to apologise and the unsatisfactory, as we have found it to be, reason given by Mr Sweeney for the absence of an apology, that is the ongoing Certification Officer proceedings.”
[23]There is a dispute between counsel as to whether that is a summary of submissions or of findings of fact. It seems to me that it is the latter. None of its contents is rejected, some are expressly adopted and the passage that immediately follows suggests that these matters, which were scarcely controvertible in the light of the whole tenor of the judgment, were accepted by the EAT. The following passage states:
“We have considered these factors, individually and cumulatively, but we accept Mr Jones’ submission that viewed overall, the [Union’s] conduct in this case is not such as to attract an award of aggravated damages. It does not pass the threshold.”
[24]Judge Peter Clark had previously identified the threshold by reference to Alexander v Home Office [1988] ICR 685 where May LJ, summarising Rookes v Barnard [1964] AC 1129, per Lord Devlin at p.1221, and Broome v Cassell & Co Ltd [1972] AC 1027, per Lord Reid at p.1085 and Lord Diplock at p.1124, mentioned discriminatory conduct that is “high-handed, malicious, insulting or oppressive”.[25]Thus, there is no doubt that the EAT properly directed itself as to the law. Mr Laddie realistically recognises that, if he is to establish an error of law in the refusal to award aggravated damages, it can only be on the ground of perversity, in which context he acknowledges that he has to surmount the high hurdle referred to in Yeboah v Crofton [2002] IRLR 634.[26]I have no doubt that the Union treated Mrs Massey badly and I accept that, in an exceptional case, the way in which a respondent conducts litigation may itself justify an award of aggravated damages: see Zaiwalla & Co v Walia [2002] IRLR 697. I also accept that the absence of an apology can be a relevant matter, although by itself it will never be enough to pass the threshold. Compensation law is not that precious.[27]I have come to the conclusion that the way in which Mrs Massey was treated came close to entitling her to aggravated damages but I do not consider that the EAT fell into legal error, that is to say was perverse, in deciding against aggravated damages. It formed a dim view of Mr Sweeney but it was in the best position to assess whether his shortcomings fell on one side of the threshold line or the other. It was entitled to conclude as it did.

Issue 3: foreseeability: the law

[28]Logically, the next issue arises from the cross-appeal. The centrepiece of the compensation claim was formulated on the basis that the stroke suffered by Mrs Massey was caused by the unjustified discipline and therefore fell to be compensated by an award of general damages. Before considering the quantum awarded under this head of damage (which both parties seek to challenge in this appeal), it is necessary to address the contention of the Union that compensation for personal injury under section 67 is subject to a test of foreseeability. The EAT rejected this contention and held (at para 36) that Mrs Massey “… is to be compensated for the loss which arises naturally and directly from the wrong.”[29]The basis of that conclusion is to be found in Essa v Laing [2004] ICR 746, in which a majority of the Court of Appeal (Pill and Clarke LJJ, Rix LJ dissenting) rejected the foreseeability test in relation to direct discrimination under the Race Relations Act 1976, section 56(1) of which also provides for the assessment of compensation on a “just and equitable” basis. Mr Jones submits that the rejection of the foreseeability test in Essa was conditioned at least in part by the European context, in particular the decision of the Court of Justice in Marshall v Southampton and South West Hampshire Health Authority (Teaching) (No.2) [1993] ICR 893. However, it seems to me that, on any fair reading of the majority judgment in Essa, the European context was only one of several factors underpinning the decision. Of greater importance was the nature of the statutory tort.[30]Although I accept that unjustified discipline is not always to be equiparated with race and sex discrimination in its gravity, that does not seem to me to be a sufficient reason to superimpose an additional test on essentially the same statutory wording. The fact that there is a statutory cap on compensation for unjustified discipline whereas there is no longer such a cap in relation to race or sex discrimination is not a reason to construe “just and equitable” compensation differentially – it simply accepts that, whatever the basic test may be, there is a limit to recoverable damages. At the time when unjustified discipline first became a statutory tort, pursuant to the Employment Act 1988, there was a similar cap on just and equitable compensation in discrimination cases. In my judgment, the EAT was right to reject the foreseeability test.

Issue 4: foreseeability: the facts

[31]In the event, the EAT went on to make an alternative finding that, even if the foreseeability test applied, it was satisfied in this case. It stated (at para 36):
“… on the facts here, some degree of injury, if not its extent, was foreseeably likely to be caused by the tortuous acts as found.”
[32]Although we heard lengthy and complex submissions on this aspect of the case, I feel able to deal with it briefly. Causation-in-fact was established by the evidence of Dr Sambrook that the unjustified discipline made a material contribution to Mrs Massey’s stroke in November 2004. Its foreseeability was not difficult to establish in the light of the line of authority culminating in Page v Smith [1996] AC 155. Foreseeability need only be of the kind of damage: Hughes v Lord Advocate [1963] AC 837. Psychiatric injury is the same kind of damage as physical injury: Page v Smith, above. And injury to feelings and psychiatric injury were assimilated for this purpose by the majority in Essa. On this basis, the finding of the EAT that “some injury, if not its extent, was foreseeably likely to be caused by the tortuous acts” is unassailable. The necessary link between the undoubtedly foreseeable injury to feelings and the stroke was forged by the evidence of Dr Sambrook and the development of law relating to kinds of damage. For these reasons, the parts of the cross-appeal which I have identified as issues 3 and 4 fall to be dismissed.

Issue 5: the quantum of general damages

[33]I have explained how the EAT assessed general damages for Mrs Massey’s physical injury at £50,000 but then discounted that figure by 75% as a result of its apportionment exercise. The apportionment is raised on this appeal and I shall deal with it as issue 6. Before reaching it, I have to deal with the other aspect of the cross-appeal whereby the Union seeks to challenge the gross figure of £50,000. Before the EAT, Mr Laddie had contended for £80,000, Mr Jones for £25,000 to £30,000. It is common ground that the general damages relate only to the stroke, that there is no diagnosable psychiatric injury and that all the non-physical sequelae are subsumed under the discrete heading of injury to feelings which I considered as issue 1.[34]The findings of the EAT on physical injury are set out as follows (at paras 26-30):
“26. [Mrs Massey] was born on 15 August 1946. Dr Sambrook … noted that on 15 November 2004 she was admitted to hospital with a headache and sensory symptoms over the left side of her body. Her speech was slurred, she was confused and had weakness on the left side of her face. Visual problems were noted, attributable to loss of sight in the right half of the visual field. A CT scan showed features consistent with infarction affecting the right side of the brain, mainly in the temporal and occipital regions. 27. She was discharged on 13 December 2004. In March 2005 she was seen by Dr Shakit, Consultant Physician, who noted that she still had major cognitive problems and an obvious visual field deficit. She was confused by simple household tasks. 28. When seen by Dr Sambrook in February 2006 she had partial loss of the right half of her visual field. She remained forgetful, although her short-term memory had improved. She still experienced transient pins and needles over the left side of her body, head and face. She no longer drives. 29. Dr Sambrook found on testing that she had lost approximately 80% of the right half of the visual field in each eye. 30. He was of the opinion that she had made a good but not complete recovery. She is not left with any motor problems. Her mental confusion has improved but she has not fully recovered. She will be left with permanent residual memory problems.”
[35]The submissions of counsel to the EAT were substantially based on Guidelines for the Assessment of General Damages, 7th edition, published by the Judicial Studies Board. Both counsel concentrated on the section entitled Head Injuries – Brain Damage and in a rare moment of concurrence, they agreed that the relevant category was that of Moderate Brain Damage. However, that category is sub-divided into three bands and, whilst Mr Laddie contended for the top of the second band, Mr Jones placed the case in the third band. The two bands are described in the following terms:
“(ii) Cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy (unless a provisional damages order provides for this risk): £50,000 - £82,000. (iii) Cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and any dependence on others is very limited: £23,500 - £50,000.”
[36]The EAT relied not simply on the JSB Guidelines. It had the evidence of Dr Sambrook that, in his opinion, Mrs Massey came more within category (ii) than category (iii). The judgment also makes clear that the EAT made “our own independent assessment, led … by this Judge’s experience of personal injury litigation in the civil courts”. There is no vanity in that remark. The relevant experience of Judge Peter Clark is indeed extensive.[37]The Guidelines are, of course, simply that. Valuable though they are, they do not purport to describe the infinitely variable circumstances which occur in individual cases. Thus, although the risk of epilepsy is not a major factor in the present case, (Dr Sambrook put it at less than 50%), visual impairment is. As has been said on many occasions, the assessment of general damages for pain, suffering and loss of amenity is more of an art than a science. It is not susceptible to exactness. This is why the Court of Appeal will only interfere with an award if it is manifestly wrong or vitiated by an erroneous approach: Housecroft v Burnett [1986] 1 All ER 332. There is one significant medical issue that was not mentioned by the EAT in the section of the judgment which contains the assessment of general damages in the sum of £50,000, namely the undisputed evidence that she would probably have suffered a stroke within 10-12 years in any event. If that aspect of the case had remained unmentioned, it would have demonstrated an erroneous approach. However, the EAT took it into account later when dealing with apportionment. In my judgment, the gross figure of £50,000 cannot be said to be manifestly wrong or vitiated by an erroneous approach.

Issue 6: apportionment

[38]Having arrived at a starting point of £50,000 for general damages, the EAT then proceeded to discount it by 75% by reference to factors which it considered under the heading of “apportionment”. It concluded that, whilst the unjustified discipline had made a material contribution to the stroke, there were three other material contributory factors for which the Union had not been responsible, namely a pre-existing condition of atheroma, stress/anxiety caused by irrelevant factors including the litigation and the incident of ostracism at the TUC in September 2004. It seems that, although the EAT did not expressly say so, it concluded that there had been four contributory causes to each of which it attributed a causative 25%, thus leading it to the conclusion that the “apportioned” contribution of the unjustified discipline was 25%. Mr Laddie is critical of the approach of the EAT to each of the other three contributory factors. I shall return to his individual criticisms. It is first necessary to consider a submission which he describes as a point of fundamental principle.[39]In a nutshell, Mr Laddie submits that, once the EAT had concluded that the unjustified discipline was a significant (in the “but for” sense) cause of the stroke, Mrs Massey was entitled to recover the gross figure for general damages because any apportionment was wrong in principle. Moreover, the stroke was an “indivisible injury” and a tortfeasor whose wrongdoing had been a contributory cause of it was liable to pay the full amount, whether or not there had been other tortfeasors from whom a contribution could be claimed.[40]The submissions on this issue ranged far and wide but, in my judgment, and on proper analysis, the problems are not as difficult as they were made to appear. It is important to start with the facts. The EAT expressly accepted the evidence of Dr Sambrook. In answer to cross-examination by Mr Jones, the doctor said:
“I would say that, on balance, if she’d not had those problems in 2002/2003, she wouldn’t have had the stroke in 2004, on the balance of probability.”
[41]The “problems in 2002/2003” were, of course, the unjustified discipline. A little later Mr Jones asked:
“Can you say on balance that they [he clearly meant the two unjustified acts] were the factors that tipped it over, that, had they not occurred, leaving everything else out, had they not occurred?”
[42]Dr Sambrook answered:
“Well, I think if they had not occurred … if what occurred in 2002/2003 had not occurred, she wouldn’t have had a stroke in 2004.”
[43]In the light of all this, the accepted evidence must have been to the effect that, but for the unjustified discipline, Mrs Massey would not have had a stroke in 2004.[44]What is also abundantly clear is that Mrs Massey had had a transient ischaemic attack in May 1999 on the day after her sister’s funeral. Although she had made a reasonable recovery, she had remained on medication for high blood pressure. The underlying problem, even before 1999, was pre-existing atheroma and, after May 1999, it was probable that she would suffer a full stroke within 12 years – in other words, by 2011. Accordingly, it is probable that she suffered a stroke about 7 years earlier than would otherwise have been the case.[45]Although counsel made intricate submissions on recent authorities such as Fairchild v Glenhaven Funeral Services Ltd [2003] AC 32, Baker v Corns UK Ltd [2006] UKHL 20, Hatton v Sutherland [2002] ICR 613 and others, in my judgment they do not deal with a factual matrix such as Mrs Massey’s. She does not need the recently developed jurisprudence to establish that the Union’s unlawful acts were causative of her stroke or that the stroke would not have occurred for some years but for those acts. She had proved both those things on a balance of probabilities. In Hatton, Hale LJ stated (at para 44):
“Where the harm suffered has more than one cause, the [tortfeasor] should only pay for that proportion of the harm suffered which is truly attributable to his wrongdoing, unless the harm is truly indivisible.”
[46]Where the harm – here, the stroke suffered in 2004 – would not have happened but for the unlawful act or acts and takes the form of a physical injury such as a stroke, it is, in my judgment, “truly indivisible”. Moreover, it does not avail a tortfeasor if the harm is related to a pre-existing condition in these circumstances, any more than it does in an “egg-shell skull” case.[47]However, that is not the end of the matter. There remains the finding that Mrs Massey would have probably suffered a stroke by 2011 in any event. Mr Laddie submits that that has been taken into account in arriving at the gross figure of £50,000. I do not read the judgment in that way. It is plain that the EAT only addressed the pre-existing condition and acceleration in the later consideration of “apportionment”. In my judgment it is a highly relevant consideration, not as a matter of apportionment in any normal sense of the word but on the conventional basis that, where a pre-existing condition would probably have caused relevant symptoms within a predictable period in any event, the damages should be discounted to reflect that finding. Thus, accepting for the moment the general thrust of Mr Laddie’s submission on the point of principle, it still leads to the need to discount the gross figure by reference to acceleration.[48]Essentially, what one would be doing would be in the form of an evaluation of the fact that Mrs Massey is living with a stroke and its sequelae for some time longer than would probably have eventuated without the unjustified discipline. It is blighting her life during her sixties and early seventies, rather than only from her early seventies. The aim is therefore to compensate her for impairment during these years – which should have been the active years early in her retirement – but on the basis that impairment would probably have occurred by 2011.[49]If the only issues relevant to general damages were the stroke and the acceleration, I would approach the matter with a broad brush and conclude that the gross figure should be halved to take account of the pre-existing condition and the acceleration of its consequences. Accordingly, I would reduce the gross figure of £50,000 to £25,000.[50]The next question is whether the other factors which the EAT considered to be relevant to apportionment are indeed relevant. It seems to me that the other stresses – particularly litigation stress – while not in themselves compensatable as injured feelings, were nevertheless sufficiently connected with the unjustified discipline to make it inappropriate to discount the general damages by reference to them. Moreover, the ostracism by unidentified former colleagues at the TUC was short-lived and, however hurtful, it seems to me that it would fly in the face of the evidence as a whole to treat it as a “but for” factor of the same sort of significance as the pre-existing condition and the unjustified discipline. We know from Dr Sambrook’s accepted evidence that the unjustified discipline satisfied the “but for” test. I do not believe that the same can be said of the ostracism, notwithstanding its proximity in time to the stroke.[51]Pulling all this together, I broadly accept Mr Laddie’s submission that we are not in Fairchild/Baker/Hatton territory. This is a case of indivisible injury, albeit inextricably linked to a pre-existing condition, and it does not call for the kind of apportionment approach now required, in other, rather different, contexts. To that extent, I consider that the EAT was wrong to be drawn into the apportionment exercise. The approach should have been the conventional one. However, the conventional approach required a discount for acceleration and I would approach that on the 50% basis to which I have referred, thus reducing the figure (subject to issue 7, below) from £50,000 to £25,000, rather than the £12,500 awarded by the EAT.

Issue 7: contribution

[52]The final question relates to the contribution by Mrs Massey herself pursuant to section 67(7), which the EAT assessed at 15%. Before the EAT it was common ground that, following the words of Brandon LJ in the context of the equivalent provision in relation to unfair dismissal in Nelson v British Broadcasting Corporation (No.2) [1980] ICR 110, 121-122, the test is one of culpable or blameworthy conduct which may be foolish, perverse or “bloody-minded”, which caused or contributed to the acts of unjustified discipline. The EAT made the 15% reduction by reference to two factors:(1) Mrs Massey’s failure to warn her colleagues on the NCC that she intended to put herself forward as an independent candidate at the Pension Trustee election, having not criticized the system of preferred candidates adopted in June 2002; and(2) the criticism of her colleagues expressed in her pen portrait to the effect that they would lack independence as trustees. Mrs Massey does not seek to appeal in respect of these factors or the 15% assessment. However, the Union cross-appeals on the basis that that assessment was far too modest. I do not agree. It is clear that the EAT applied the correct test. We also know (because the judgment tells us) that the lay members had a particular input on this issue and that the judge agreed with their common view. I can see no basis upon which it can be said to have been vitiated by legal error. It was a matter of fact and degree. Moreover, the Union faces the difficulty that some of its more intemperate criticisms of Mrs Massey were withdrawn by Mr Sweeney in the course of his evidence.

Conclusion

[53]This has been a wide-ranging appeal and I now summarize my conclusions in relation to it: i) The award of £7,500 for injury to feelings was too low. I would replace it with one of £12,500. ii) The EAT was correct not to award an additional sum by way of aggravated damages. iii) The gross figure of £50,000 in respect of general damages for pain, suffering and loss of amenity is appropriate but, taking a different approach from the EAT, I would discount it to £25,000, simply to reflect the fact that the relevant injury would probably have occurred by 2011, even absent the unjustified discipline. iv) The EAT’s finding of a 15% contribution is not susceptible to appeal. v) It follows that the total compensation should be increased to £31,875, ie £12,500 + £25,000 = £37,500, less 15% (£5,625) = £31,875.[54]To that extent, I would allow the appeal.

Lord Justice Wall:

[55]I have had the advantage of reading in draft the judgments of both Pill and Maurice Kay LJJ. I agree that this appeal should be allowed for the reasons given by both, and to the extent proposed by Maurice Kay LJ. I add a short judgment of my own on the two issues on which we are in disagreement with the conclusions reached by the Employment Appeal Tribunal (EAT) namely damages for injury to feelings (issue 1), and apportionment (issue 6). I do not need to say anything else about Maurice Kay LJ’s analysis of the other issues, save that I agree with it. I also gratefully adopt his recital of the facts.[56]I approach this appeal with what I hope is a suitable degree of humility, as I chaired the constitution of the EAT in what has become the leading case in this court of Vento v Chief Constable of West Yorkshire Police (No 2) [2002] EWCA Civ 1871, [2003] ICR 318 (Vento). In that case, this court held that the EAT had been wrong both to reject the figure for future loss of earnings assessed by the Employment Tribunal (the EAT thought it too high), and not to have reduced the award for injury to feelings to a extent. The Employment Tribunal had awarded a total of £74,000 made up as to £50,000 for injury to feelings, £15,000 by way of aggravated damages and £9,000 for psychiatric injury. The EAT reduced the first and the second to a total of £30,000, whilst leaving the figure of £9,000 intact. This court, on the Chief Constable’s appeal, reduced the award for injury to feelings still further. Its award amounted to a total of £32,000 made up as to £18,000 for injury to feelings, £5,000 by way of aggravated damages and £9,000 for psychiatric damage.[57]Maurice Kay LJ has identified the guidance given by Mummery LJ in Vento, and I do not need to repeat it. I respectfully agree with him that by reference to that guidance, the figure awarded by the EAT in the instant case is too low by a sufficient margin to make it proper for this court to interfere. In my judgment, the instant case is clearly in the upper part of the middle band. Left to myself, I may have placed it nearer the top of the middle bank than Maurice Kay LJ has done. However, given the caveat set out in paragraph 56 above, I am gratefully content to adopt both his reasoning and his figure.[58]On apportionment, I do not disagree with the EAT’s starting point of £50,000 for an award of damages for personal injury. Like Maurice Kay LJ, I take that to be the EAT’s figure for such damages unconnected with, and prior to any consideration of, the so called “discounting” factors. I am, however, quite satisfied that the EAT was wrong to discount that figure by 75%. Three questions therefore arise:(1) should the figure be discounted at all?(2) If so, on what basis should it be discounted?(3) If it is to be discounted, by how much?[59]The basis upon which the EAT discounted the figure of £50,000 was that “taking into account all non-tortious contributory factors, we assess the contribution of the acts of unjustifiable discipline in the present case, on the whole of the evidence, at 25%”. The EAT appears to have reached this figure by identifying three of material “non-tortious” factors and by giving that all the same weight as the “tortious acts”. Thus the three “non-tortious” factors were:(1) the appellant’s pre-existing atheroma, as evidenced in particular by the incident immediately after her sister’s funeral in May 1999;(2) litigation stress, which “does not sound in damages when apportioning responsibility for the loss flowing from the index tortious acts”; and(3) the ostracism by her former colleagues at the TUC in September 2004.[60]I am not persuaded by this reasoning for the reason given by both Pill and Maurice Kay LJJ, whose approach I prefer. This is, in my view, an indivisible injury. In very broad terms, however, I have to accept that the personal injury suffered by the appellant, for which compensation is payable by the Union, is not simply the fact that she suffered a stroke in 2004: it is the fact that she had a serious stroke in 2004 rather than in 2011 or thereabouts. The medical evidence is clear: she would have had a serious stroke at some point in the future. The tortious acts of the Union accelerated its occurrence.[61]I therefore proceed on the basis that the Union is responsible for the fact that the appellant suffered a stroke in 2004. In these circumstances, I find the EAT’s discounting of 75% for the three, “non-tortious factors” which contributed to the stroke unacceptable as a method of assessing the level of damages for personal injury which the Union should pay the appellant.[62]However, for the reasons advanced by Maurice Kay LJ, I have to accept that the answer to the first of the questions I pose in paragraph 58 above must be “yes”. The evidence of Dr. Sambrook makes it impossible for any other answer to be given. The fact that the injury would have occurred at some point in the future makes it inevitable, in my judgment that the award of £50.000 must be discounted in some way in order to cater for that fact.[63]How does the court compensate for the acceleration of a serious event such as a stroke? Like Maurice Kay LJ, I get no help from the cases which were cited to us. The fact that the appellant, on the medical evidence, would have suffered a stroke in the future - come what may - places the case in a different category from those cases cited to us in which there was a dispute as to the causation of the complainant’s injury.[64]At the end of the day, I find myself in agreement with Maurice Kay LJ when he acknowledges that it is left to the court to apply a broad brush. My own brush, left to itself, might, I think, have discounted the figure of £50,000 by less than 50%. To suffer a stroke in one’s early sixties is not the same, in my judgment, as suffering a stroke in one’s early seventies. There has been a serious deterioration in the appellant’s quality of life at a time when she should have been able to retire, relax, avoid stress and prepare for old age. Once again, however, I am mindful of the caveat I entered in paragraph 56, and do not dissent from Maurice Kay LJ’s conclusion that a 50% discount is appropriate.[65]The only point I would add is that it does seem to me appropriate for this court to stand back and to look at the award overall. We are increasing the award from £17,000 to £31, 875. I am in no doubt at all, on the facts of the case, that the award of £17,000 was too low, and although it can be said that, statistically, we are not far off doubling it, it remains, in my judgment, on the facts of the case, a modest award even allowing for the cap which Parliament has imposed. Overall, however, I do not think it can be said that, on the facts of this case, an award slightly above 50% of the statutory maximum is either too low or too high.[66]I remind, myself, moreover, that this court is not the court of first instance. Its function is to review, and to correct errors of law. I am, accordingly, satisfied that a proper exercise of that function results in an award of £31,875.

Lord Justice Pill:

[67]I also agree and wish to add words only on the subject defined by the EAT and by Maurice Kay LJ as “Apportionment”.[68]Mrs Massey, then 58 years old, suffered a stroke on 15 November 2004. The tortious conduct had occurred on 25 September 2002, the no confidence motion, and on 7 January 2003, the debarring of Mrs Massey from holding any office in the Union for 2 years. It is necessary to consider what, if any, part those events played in causing the stroke.[69]Dr MA Sambrook, consultant neurologist, was questioned at length about the cause of the stroke. He stated that there is a very strong link between stress and heart disease, myocardial infarction. Stress was the factor causing the stroke.[70]There was a pre-existing atheroma, or irregularity, and there had been an episode of cerebral ischaemia in 1999 on the day after Mrs Massey had attended her sister’s funeral. Mrs Massey was not, otherwise, a high risk person for having a stroke, being a non-smoker and not excessively overweight.[71]The tortious events were undoubtedly stressful events. There had, however, been other stressful events in the period before the stroke, notably Mrs Massey’s ostracism at the TUC conference in September 2004 and litigation stress, an originating application having been presented to an Employment Tribunal in April 2003. These were found to be non-tortious events.[72]On the basis that the stroke had resulted from stress, Dr Sambrook was asked about the contributing factors. As recorded in his written report, Mrs Massey put it to him in this way:
“The stress arising from the events which occurred in September 2002 and January 2003 caused ongoing stress up to the time of her stroke in November 2004”
. Under cross examination, Dr Sambrook gave the evidence recorded by Maurice Kay LJ at paragraphs 40 and 42 of his judgment, which I adopt.[73]I agree with Maurice Kay LJ that the proper conclusion on the evidence is that, but for the tortious events, Mrs Massey would not have had a stroke in 2004. Dr Sambrook did accept, however, that the other stresses, the non- tortious stresses, would also have made a contribution.[74]The EAT referred, at paragraph 38, to the factors for which the Union were not responsible. They identified the pre-existing atheroma, the transient ischaemic attack which occurred in 1999, litigation stress and ostracism. The evidence was that, because of the pre-existing condition, a stroke would probably have occurred within 12 years of 1999 in any event. Without further assessment of those factors, the Tribunal assessed the contribution of the tortious acts to the stroke at 25%.[75]Subject to the issue to be canvassed, I approach the issue, as did Maurice Kay LJ, on the basis that general damages for pain, suffering and loss of amenity would have been £50,000 and that Mrs Massey would probably have suffered a stroke by 2011 in any event.[76]Of the factors considered by the Tribunal, the pre-existing condition should not be treated as a contributing event. Its relevance was as a pre-existing condition which rendered Mrs Massey more vulnerable to stroke if subjected to stressful events. Neither is the likelihood of a stroke happening in the future in any event though that goes to the extent of Mrs Massey’s loss. I agree with the reasoning and conclusion of Maurice Kay LJ on the relevance of this point. Damages should be reduced because the stressful events did no more than accelerate the date on which the stroke occurred.[77]Subject to the deduction because the stroke would have occurred at some future date in any event, no apportionment is in my view required and the stroke can, and should fairly, be attributed to the tortious events. On the evidence, these were not only the originating events in terms of stress but were much the most important.[78]As Maurice Kay LJ points out, at paragraph 18, the evidence about ostracism is quite sparse. The litigation stress is consequent and parasitic upon the tortious acts. It is not itself compensatable in damages but it should not be isolated as a separate cause of the injury. It would not be just to reduce damages, on the present evidence, because of stress brought on by Mrs Massey’s reaction to the tortious acts. The litigation stress is closely connected with the stress resulting from the tortious acts and a deduction would be inappropriate. The tortious disciplinary conduct not only satisfied the “but for” test but, for the purposes of assessing damages, should be treated as the cause of the injury. I should prefer to follow that reasoning, which is substantially the same as that of Maurice Kay LJ, than to attach the label “indivisible” to the injury.[79]It follows that I agree that a sum of £25,000 is the appropriate award for damages for pain, suffering and loss of amenity, subject to the deduction under section 67(7) of the 1992 Act.

Cited in 4 later judgments