Ministry Of Defence v O'Hare [1996] UKEAT 1145_95_2604

EAT
Ministry Of Defence v O'Hare
[1996] UKEAT 1145_95_2604 · 1996-04-26
For the Appellants MR M BELOFF Q.C.

and

MR R SINGH

(of Counsel)

The Treasury Solicitor

Room 449

Lacon House

Theobalds Road

London WC1X 8RY

For the Respondent (Mrs J O'Hare) MISS E O'HARE

(of Counsel)

Messrs McQueen Yeoman

Solicitors

221 The Broadway

Lower Blandford Road

Broadstone

Dorset BH18 8DW

For the Respondent (Mrs P Lowe) MR B LANGSTAFF Q.C.

Harehills & Chapeltown

Law Centre

263 Roundhay Road

Leeds LS8 4HS

JUDGE PUGSLEY :

In this case we are hearing two appeals which raise issues as to compensation under the sex discrimination legislation in the case of servicewomen who chose to have their pregnancy terminated. Two of the matters with which we are concerned raise issues of general principle. The first issue is the appropriate level of compensation that should be payable. The second issue is whether a servicewoman can recover compensation when the operation of the Ministry of Defence policy was only a subsidiary reason for her decision to have the abortion. In the case of Mrs Lowe there is a further ground of appeal which arises on its particular facts.

The factual background: Mrs O'Hare

The main outlines of the decision are set out in paragraph 2 - 4 of the Industrial Tribunal's decision and we consider that it is worth quoting those paragraphs in their entirety.
"2. The facts are that the applicant enlisted in the WRAF on 28th June 1979 when she was 17 years of age. Her career developed satisfactorily. She married Peter O'Hare, who was also serving in the Royal Air Force on 27th February 1987. In October 1987 she discovered unexpectedly she was pregnant. She found herself in a dilemma. To continue with her pregnancy would have meant dismissal from the armed services in accordance with the then policy of the respondent and the consequential loss to herself of the career to which she had given, and had intended to continue to give, considerable commitment. To have the pregnancy terminated involved an agonizing personal decision, further affected by her endeavouring to have regard for the point of view of her husband (who is Roman Catholic), notwithstanding that he said he would support whatever decision she reached.
3. She decided that she wanted to preserve her career and thus to seek a termination. She knew that that involved medical approval. She told the doctor that she was adamant that she did not want children at any time. She thought (correctly as the doctor's evidence indicated) that by saying what she did it would ensure medical approval. The tribunal is satisfied that this did not represent her true belief at the time, but was said to gain approval. The pregnancy was duly terminated by Dr Governor on 4th November 1987.4. The conditions under which that occurred the applicant found deeply distressing. The further consequences were even more serious. Her husband realised that he had made a grave error of judgement. The applicant's distress continued. The personal and physical relationship was seriously impaired. For a time they separated. The applicant left the service on 1 August 1989. Whilst they are now together the long term effects have sadly continued."The tribunal went on in paragraph 9 to decide that this is a case which "requires a substantial compensation assessment for injury to feelings" and awarded Mrs O'Hare the sum of £10,000 and interest.

The factual background: Mrs Lowe

The tribunal in a comprehensive decision made it clear that they regarded the Mrs Lowe as an unreliable witness and in paragraph 2 of their decision they state in these terms:
"Where there has been a conflict of evidence in any material particular the tribunal has accepted the evidence of the respondents' witnesses. We concluded that the applicant's perception of events had either been deliberately distorted by the passage of time or, as the respondents' counsel put it, that she "had deliberately embellished them.""
In paragraph 3 the tribunal went on to set out its findings of fact in a most careful and comprehensive manner. The respondent was born on the 15th November 1961. Initially she had hoped to be a nurse and from the age of 18 spent some years training during which time spent some time on wards dealing with termination of pregnancy. In the early part of 1983 she gave up nursing and joined the WRNS as a telephonist. In August 1984 she met Steve O'Hara who was a sailor. In November 1984 she believed she was pregnant. She had a pregnancy test. She did not intend to marry the father of the child. She did not hear from him after she had told him she was pregnant. She was not on speaking terms with her parents and did not inform them of her pregnancy or the termination.According to the respondent she was told that she was 11 weeks pregnant and that time was of the essence. She gave evidence to the tribunal that on the day of the abortion on the way to the theatre she had a change of heart and said she did not want to proceed with the abortion. She said she was devastated after the termination and that no one had listened to her and that she had not been given time to make the decision. She said she had suffered mental anguish and that she felt that the miscarriage she later suffered between her first and second child was a punishment. In relation to her first daughter she told the tribunal that she felt it should have been her second baby and not her first.There was a chasm between the respondent's account and that of the appellants' witnesses. The most fundamental finding of fact made by the tribunal was that the respondent never had a viable pregnancy which would have led to a live birth. It is pertinent to quote the relevant part of their decision:
"3(g) Dr Evans gave evidence to the tribunal. We regarded him as a reliable and convincing witness. He had the benefit of being able to see the notes he made at the time.
3(i) Dr Evans himself performed the operation. He found that it was a possibility that it was an ectopic pregnancy, that is it had occurred outside the uterus. He accordingly sent away the samples of products taken from the applicant for a report. Dr Evans obtained this histology report, which was dated 20th December, and from that it was apparent that there was not pregnancy in the uterus. There has been a pregnancy somewhere but not in the uterus itself. In other words, he told the tribunal, the child could not have been born in any event."The tribunal then went on to find as a fact that Dr Evans had told the respondent that she would never have had a baby in any event.In paragraph 5 the tribunal reviewed its findings of fact and we quote the relevant sub paragraphs:
"5(a) ... We are satisfied that the applicant did not want this pregnancy for many reasons - she had not relationship or no enduring relationship with the father of the child who, more or less immediately he learned that she was pregnant, had no further interest in her and returned to a permanent relationship with another woman. The applicant's parents were unsupportive. We also accept that she had been enjoying a very happy social life and that life as the mother of a young baby and remaining in the Navy, would undoubtedly have been impeded.
5(b) Counsel for the respondents has asked us to assess the chance of the applicant having the abortion in any event, irrespective of the respondents' unlawful policy on the basis of the balance of probabilities. The tribunal is however of the view that the appropriate way to approach the question is on the assessment of the chances. In other words, had maternity leave been available to the applicant would she have availed herself of the opportunity to have the baby and return to the service in the Forces? We find that factors outside the respondents unlawful discriminatory policy weighed heavily with the applicant in deciding to terminate the pregnancy, that is, those factors I have mentioned above, although the discriminatory policy would have played some part in the appellant's decision. Taking everything into account we assess the chance that she would have had the abortion irrespective of the unlawful discriminatory policy at 75%.5(d) We have carefully considered what the amount of the award should be for injury to feelings. We say at the outset that the facts of this case are substantially different to those in the Mutton case. We have found that there were other factors in this case which would have led the applicant to consider an abortion other than the discriminatory policy of the respondents. Furthermore, we were unimpressed by her evidence of the mental anguish she said she had suffered in relation to the abortion when she said that she regarded the birth of her first daughter to be, in fact, her second child than her first. We are satisfied, on the balance of probabilities as I have explained above, that Dr Evans would have explained to her 3 weeks or so after the termination of the pregnancy that there was no chance whatsoever of a viable pregnancy in any event. We also reject her evidence that she was told that she was 11 weeks pregnant when all the records show she was 8 weeks pregnant. We also reject her evidence that, on the way to the operating theatre, she announced that she had changed her mind but was nevertheless forced to go through with the abortion ..."The tribunal found that the medical practitioners acted perfectly properly and went on to award Mrs Lowe the sum of £500.

The level of Compensation

We turn now to the appellants' appeal from the award of £10,000 to Mrs O'Hare. It is a fundamental proposition of civil liability that there should be restitutio in integrum ; the plaintiff should be restored to the position that he or she was in before the civil wrong was inflicted on him or her. As Sir Thomas Bingham MR made plain in his introduction to the Judicial Study Board's Guidelines for the assessment of General Damages in Personal Injury cases in many cases this is impossible since personal injuries cannot be valued like the repair or replacement of a chattel. The only currency in which the law can evaluate wrecked limbs and emotional trauma is the crude language of money. Very similar considerations apply in cases of injury to feelings.Although there is no appeal on quantum in the case of Pope v MOD we have considered that decision in the earlier issue of appeal as to causation. We find the approach of the Exeter Tribunal helpful. It analysed two different types of loss; the dilemma of having to make the decision and the consequences of making that decision. At paragraph 28 they state:
"We have no doubt whatsoever that the initial detriment was the fact that the applicant was placed in the dilemma and she is entitled to compensation for it. In our view there are two parts of the detriment. The first is the dilemma in which she is placed and the second is the operation itself."
That tribunal rejected the Ministry of Defence's contention that the dilemma of making the decision was too early in the process to constitute a loss. It would seem from paragraph 34 of their decision that they evaluated the dilemma of making the decision at £2,000.In Mrs O'Hare's case at paragraph 8 the tribunal gave a rather more sophisticated analysis of the detriment which the respondent suffered:
"... In this case we find the consequences include first her being placed in the dilemma of having to decide whether to continue with the pregnancy and thus lose her career, or seek a termination and thereby continue with her career, secondly her having to make a decision which would inevitably cause her some distress one way or another, thirdly the actual distress caused by the act of termination and the immediate related effects of shame and embarrassment and fourthly the consequential longer time effects which in this case are considerable."
The Leeds tribunal considered splitting the assessment but in the event did not do so and awarded a global amount for injury to feelings of £10,000.Although we have found the analysis of both the Exeter and the Leeds tribunal helpful we ought to say that we are not seeking to impose a mandatory requirement that every case should be viewed in this way. Such is the wide variety of differing factual backgrounds which tribunals might have to consider that it would be wrong to seek to fetter their discretion. Nevertheless we consider both tribunals were right to analyse the issue in broad terms as the dilemma of making the decision and the consequence of making that decision.We have been invited by Mr Beloff to lay down general guidelines for the assessment of compensation in such cases. We view that request with a degree of caution. We have not had the opportunity of hearing a wide range of different cases. So often guidelines wrenched from their particular factual context can become trip wires if applied to other situations. We consider it might be helpful if we made general observations which might assist those who have to consider the matter. However such views as we express are subject to the over riding consideration that guidelines are not tramlines and the assessment of compensation calls for the exercise of judgement by the Industrial Tribunal, not merely the arid application of decisions of appellate courts.Over the last 25 years there has been a quiet revolution in the attitude of the courts in both civil and criminal litigation. The days have long since gone when the judiciary were offended by having cases cited to them as to sentence in criminal cases or as to damages in personal injury cases. The Judicial Studies Board has itself produced publications to assist the courts in both these areas. Yet it remains the case that our legal system places particular reliance on the discretion of the court or tribunal determining the issue at first instance. Appellate courts will only interfere with a decision of the judge or tribunal of first instance if it is wrong in principle.Mr Beloff has argued that the purpose of an award to injury to feelings is to award a person for the hurt which flows from the knowledge that he/she has been discriminated against ( Skyrail Oceanic Ltd v Coleman [1981] ICR 864 at 871G. He cites Alexander v Home Office [1988] ICR 685 at 692C-E (May LJ)) for the proposition that the policy of the legislation is likely to be brought into disrepute if excessive awards are made. He points out that in Cannock [1994] ICR 918 at 942H Morison J described the award of injury to feelings arising out of discharge as "relatively high" . Mr Beloff contends that a woman who sacrificed her career rather than her unborn child would feel a sense of grievance if injury to feelings was more highly compensated in the case in which a woman elected to have an abortion.The main plank of Mr Beloff's argument is that in awarding the sum of £10,000 the tribunal failed to keep a sense of proportion when one considers the type of award made in personal injury cases especially when interest is taken into account.Mr Brown points out that the award was not out of line with Muttons case. In Mutton [unreported - EAT/309/95 & EAT/696/95] the applicant was awarded the sum of £60,635. Initially she had a termination and then, when she was pregnant a second time, she kept the child and was compulsorily discharged. For the injury to feelings on the termination she was awarded £12,000 and on her compulsory discharge £3,000. However the case was remitted to the Industrial Tribunal since the award of £12,000 was held to include an element of exemplary or aggravated damages which were inappropriate on the facts of the case. Although the appeal was allowed it is clear from the judgment of Maurice Kay J that it was on the facts a comparable case to that of this applicant. It was a case in which the Industrial Tribunal took a serious view of the injury to feelings.In Cannock Morison J decided that in the case of injury to feelings applicants were entitled to have their awards assessed at today's values and to have interest applied, unless the Industrial Tribunal was satisfied that the applicant herself had been responsible for the delay in bringing the proceedings (946B and C). We regard the question of interest on the award as having been resolved.Mr Brown suggests that the award was not out of line with personal injury cases and he makes the point that there is now no statutory maximum. Certainly in North West Thames Regional Health Authority v Noon [1988] ICR 813 the assessment of injury to feelings was influenced by the existence of a statutory maximum (as was pointed out by Balcombe LJ at 836). It is difficult to equate injury to feelings with personal injuries but we do not consider that the award in this case is out of line with the sort of figures awarded in post traumatic stress cases.Mr Brown points to the terms in which the tribunal itself justified its decision. The tribunal felt that the conditions in which the decision was made were "deeply distressing" and the further consequences "were even more serious" and it reached the conclusion that this is a case "which on the facts requires a substantial compensation assessment for injury to feelings" .We do not consider that our judgment should be influenced by the fact that the respondents will receive interest on their awards. That is a matter which has already been resolved by the decision in Cannock .Applying these principles we consider that the compensation for the injury to feelings of having to make the decision about an abortion in the context of losing one's job should be in the order of £2,000. The particular findings of the tribunal might reduce or increase this figure. It will be a matter of fact for a tribunal to identify the particular injury to feelings which any particular applicant suffered in making that decision. There may be cases - such as where there were overwhelming medical deformity of the unborn child - in which it would be inappropriate to make any award. In other cases where there were cogent other reasons for making the decision it will be appropriate to reduce the sum and in other cases, where the discriminatory policy was the sole cause, to increase it.The second element, namely the degree of injury to feelings consequent upon having an abortion, is in our view much more difficult to categorise and any bracket must inevitably be wider. We do not accept Mr Beloff's suggestion that injury to feelings is likely to be of shorter duration and less serious than physical injury.In cases where the injury to feelings consequent upon the decision to have an abortion is relatively transient we would consider that compensation would be in the order of £1,500 to £3,000. In those cases where in it more durable then we would enlarge the bracket to that of £3,000 to £7,500.The tribunal which awarded Mrs O'Hare the sum of £10,000 did not break down its award into constituent elements (and we make no criticism of them for that) but on the basis that it included the injury to feelings in making the decision as well as the injury consequent upon the decision we see no ground for saying that the award was such that we consider we should reduce it. On balance in our view it represents the upper end of an award. It would in our view have to be a case in which there were the most grave consequences for the total sum to exceed the £10,000 awarded. We dismiss the appellants' appeal against the sum awarded to Mrs O'Hare.

Mrs Lowe

The appellants' appeal against the award to Mrs Lowe raises the question as to whether compensation for injury to feelings consequent upon as abortion is payable if the tribunal finds that the unlawful discriminatory policy was only a subsidiary reason for seeking the termination. As was noted above in paragraph 5(b) the tribunal rejected the argument that the issue should be decided on the balance of probabilities and approached this on the basis of an assessment of chances.In a significant number of cases in which the applicant has been dismissed due to redundancy without adequate consultation tribunals find that the dismissal was unfair. In such cases it is a well-established practice that a tribunal will assess the percentage chance that had there been consultation the applicant would not have been dismissed and assess compensatory awards accordingly. In a nutshell a tribunal is asking this question: what is the chance that a fair minded employer would not have dismissed had it been aware of the facts which adequate consultation would have revealed?Mr Beloff has submitted that however apt that may be in such cases there is a conceptual difference between that position and the issue in this case in which a tribunal has found that there was a 75% chance that Mrs Lowe "would have had the abortion irrespective of the unlawful discriminatory policy" .In the "lack of consultation" unfair dismissal case a tribunal is engaged in asking the hypothetical question: would the employer still have dismissed the employee if aware of the facts which consultation revealed? In this case, although the question is still hypothetical in the sense that maternity leave was not available, the tribunal has made a specific finding of fact that the unlawful policy was only a subsidiary reason for the decision.Mr Beloff has submitted that the tribunal misdirected itself in approaching this case on the basis of assessing a percentage chance and that the tribunal should have found that on the balance of probabilities the respondent chose to have the termination for reasons other than the operation of the unlawful discrimination policy. He makes the point that an applicant could succeed in establishing that on the balance of probabilities the unlawful policy was the cause of the decision to have an abortion even if there were potent other reasons for the decision as long as the tribunal concluded at least 51% of the reason was the unlawful policy.He cites as an example the classic case of Chaplin v Hicks [1911] 2 KB 786 (CA) in which on assumed facts the actress was held to be entitled to substantial damages because the defendant had breached his contract with her by failing to give her a reasonable opportunity to attend an audition as a result of which she might have been one of 12 women selected from 50 competitors. There was no issue that the breach had caused the loss of chance to occur. If, however, the actress had secured a lucrative role in a play or film which required her to miss the audition there would still have been a breach but the loss of chance would not have been caused by it so no issue of quantification would have been reached.Mr Beloff relies on Hotson v East Berkshire Area Health Authority [1987] AC 750 . In that case the plaintiff when a schoolboy was climbing a tree and sustained an acute fracture of the left femoral epiphysis. He was taken to hospital but his injury was not diagnosed correctly for 5 days. The defendant health authority admitted negligence in failing to diagnose and treat his injury promptly. Simon Brown J found that even if the correct diagnosis and treatment had been given promptly there was a high probability (which he assessed at a 75% risk) that avascular necrosis would still have developed. He held that the plaintiff was entitled to have damages for the loss of the 25% chance that he would have made a nearly full recovery and awarded him £11,500. The Court of Appeal affirmed the decision.The House of Lords, in allowing the appeal, emphasised that it was for the plaintiff to establish on the balance of probabilities that the delay in treatment had at least materially contributed to the development of the avascular necrosis and for the judge to resolve on the balance of probabilities the conflict of medical evidence as to what had caused the avascular necrosis.The finding of fact that there was a 75% risk that avascular necrosis would still have developed if the correct treatment had been given promptly was, on the balance of probabilities, a finding of fact that the fall had left insufficient blood vessels intact to keep the epiphysis alive, which amounted to the finding of fact that the fall had been a sole cause of the avascular necrosis. It was held that the plaintiff's claim failed on the basis of causation and no question of quantification had arisen. It was pointed out in the speeches of Lord Bridge of Harwich (783A-B); Lord Mackay of Clashfern (785F) and Lord Ackner (793F) that had the plaintiff established his case on the balance of probabilities then there was no principle of law which would have allowed or required a discount for the chance that even if there had been correct treatment avascular necrosis might well still have developed.Although Lord Mackay considered it would be unwise to lay down a rule that a plaintiff could never succeed by proving a loss of chance in a medical negligence case (786A) he concurred with others in approving the dictum of Lord Diplock in Mallet v McMonagle [1970] AC 166 . 176:
"In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain."
Mr Beloff relies on the Court of Appeal authority of Allied Maples [1995] 1 WLR 1602 that where unlawful conduct consists of an act rather than an omission the question of causation has to be decided as a matter of historical fact on the balance of probabilities. The matter is analysed in the judgment of Stuart-Smith LJ and the passage at 1609H - 1610A is pertinent.Mr Langstaff has not sought to return the fire with judicial authority of comparable weight. It is his submission that the fire has been directed to the wrong target. He points out from the findings of the tribunal at paragraph 5(d) and the level of the award that, notwithstanding dealing with the matter on the basis of an assessment of a chance, it is clear that the tribunal did not compensate the respondent for the consequence of her decision to have an abortion. In terms the tribunal rejected the respondent's contention that she had suffered from mental anguish consequent upon the abortion. Mr Langstaff contends that there was clear evidence upon which the tribunal could find that their unlawful discriminatory policy did cause her some distress in placing her in the dilemma of having to choose between sacrificing her career or her unborn child.The brief answer is that we consider that both Mr Beloff and Mr Langstaff are correct in their submissions. We accept Mr Beloff's submission that the tribunal having found that there was a 75% chance that Mrs Lowe would have had the termination irrespective of the unlawful discriminatory policy, should have gone on to find that on the balance of probabilities she had failed to establish that the Ministry's discriminatory policy was a cause of the her decision to seek an abortion. There was a misdirection by the tribunal in seeking to deal with this as a matter of assessment of the chance rather than on the basis of the balance of probabilities.Yet we consider that Mr Langstaff is right in saying that notwithstanding the misdirection by the tribunal the clear and explicit findings of the tribunal were that the discriminatory policy was a part (albeit a lesser part) of the decision to terminate the pregnancy and the tribunal were entitled to award her some figure for her injury to her feelings in that this was an added dimension to the dilemma in which she was placed.

The Respondent's Cross Appeal

In their most helpful skeleton argument Mr Langstaff and Ms Rose concede that "at first blush, the cross appeal may seem like an appeal on fact" . In a careful argument Mr Langstaff has submitted that the tribunal took the view that Mrs Lowe was an unreliable witness, and stated that they preferred the evidence of the Ministry of Defence's witnesses "where there was any conflict" . The tribunal correctly stated that the doctors had no independent recollection of Mrs Lowe and their evidence was derived from the contemporaneous notes. Complaint is made that the tribunal's decision gives a misleading impression that there was a conflict between the evidence of Mrs Lowe and the medical witnesses on the crucial evidence as to her reason for seeking an abortion. It is pointed out that in their decision the tribunal did not rehearse the evidence that from the medical notes there is reference to the fact that Mrs Lowe told the doctors that she did not want to leave the navy. Moreover, it is said that the tribunal did not advert to the evidence of Mrs Duffy, a working colleague, who gave evidence that Mrs Lowe main concern was losing her job.It is true, as Mr Langstaff has suggested, that the tribunal may have mis-stated the position as far as the ectopic pregnancy is concerned. Although the ectopic pregnancy was investigated the medical notes show there was no evidence of an ectopic gestation. In these circumstances the tribunal's suggestion that the respondent with her nursing experience should have been relieved at having avoided the consequences of an undiscovered ectopic pregnancy is inapt.Yet it is the clear and unequivocal finding of the tribunal was that at no time did she have a viable pregnancy. The histology report dated the 20th December 1984 stated as follows:
"The specimen consists of secretory endometrium and decidua. No villi membranes, trophoblast or fetal parts are present."
The medical notes show that on 12th January 1985 Dr Evans explained the findings on the histology report. The tribunal accepted his evidence that he would have explained that the histology report meant there was no prospect of a viable pregnancy.The tribunal made four principal findings of fact:a) That the discriminatory policy was a lesser reason for the respondent seeking an abortion.b) That the respondent never had a viable pregnancy.c) That the respondent was told this.d) That they rejected the respondent's claim that she suffered from mental anguish after the abortion.If the tribunal had made a finding of fact that they rejected Mrs Lowe's evidence that the discriminatory policy had played any part in her decision to seek an abortion there might be some force in Mr Langstaff's argument. The truth is that the tribunal found that the discriminatory policy played some part in her decision although a lesser part. In a long and careful decision the tribunal reviewed the evidence in a most meticulous manner. In our view there was abundant evidence upon which they could make the findings of fact which they did. In our view the "first blush" is also the indelible impression that this is a highly sophisticated appeal on the facts. We dismiss this aspect of the cross appeal.Mr Beloff has asked us not to remit the case to the Industrial Tribunal in view of the misdirection of law if we accept the tribunal's assessment of compensation. Although we put forward the sum of £2,000 as the appropriate figure for the injury to feelings in having to make a decision in the context of losing a job or an unborn child where, as in this case, it was only a subsidiary part of the dilemma, we do not consider the award of £500 is wrong in principle.Looking at the totality of the evidence we consider the tribunal was justified in saying that the respondent suffered some injury to feelings by virtue of the unlawful policy but making a modest award. We therefore dismiss both the appeal and the cross appeal.There is a further ground of appeal concerning interest which has not been argued before us. It is said in the skeleton argument that it is common ground that the tribunal erred in failing to consider an award of interest. If this is a live issue application can be made within 28 days of this judgment being handed down to reinstate this aspect of the appeal.

Conclusion

We have only considered these two cases on the issue of the proper assessment of quantum. We have, however, considered the case of Mrs Pope in another context. For the reasons we have given we hesitate to dignify our conclusions by the description of guidelines. We consider that the range of awards of £500 in the case of Mrs Lowe; £5,000 in the case of Mrs Pope and £10,000 in the case of Mrs O'Hare show that each Industrial Tribunal was in broad terms adopting a uniformity of approach and that the wide disparity of the awards properly reflects the very different findings of fact made by each tribunal.