United Kingdom Employment Appeal Tribunal

Appeal No.  UKEAT/0144/10/SM

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

                                                                                                                At the Tribunal

                                                                                                                On 7 July 2010

 

 

 

Before

THE HONOURABLE MR JUSTICE KEITH

MR B BEYNON

MR M WORTHINGTON

 

 

 

 

 

MISS E THAINE                                                                                                    APPELLANT

 

 

 

 

 

 

LONDON SCHOOL OF ECONOMICS                                                              RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

                                              APPEARANCES

 

 

 

 

 

For the Appellant	MS SABRINA SULLIVAN (Solicitor) The Disability Law Service 39-45 Cavell Street London E1 2BP
For the Respondent	MR TOM BROWN (of Counsel) Instructed by: Pinsent Masons Solicitors CityPoint One Ropemaker Street London EC2Y 9AH

 

 

SUMMARY

SEX DISCRIMINATION – Other losses

 

Where an employee’s psychiatric ill-health has been caused by a combination of factors, some of which amount to unlawful discrimination for which the employer is liable, but others which were not the legal responsibility of the employer, it is open to an Employment Tribunal to discount the employee’s compensation by such percentage as reflects its apportionment of that responsibility.

 

 

THE HONOURABLE MR JUSTICE KEITH

 

1.            The Claimant, Eliza Thaine, was employed by the London School of Economics (“the LSE”) as a painter and decorator.  Her employment began in May 2006.  She worked in the LSE’s Maintenance Department.  There were about 18 employees in the department, and Miss Thaine was the only woman.  Following her dismissal from her employment, she brought claims of sex discrimination, disability discrimination and unfair dismissal against the LSE.  Her complaints were dismissed, except for two aspects of her claim of sex discrimination which the Employment Tribunal upheld.  She was awarded compensation by the Tribunal, and she now appeals against the level of the award.

 

2.            Section 65(1)(b) of the Sex Discrimination Act 1975 provides that where a tribunal has found a complaint of sex discrimination well-founded, it shall make an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages which the respondent could have been ordered by a county court to pay to the complainant, provided that the tribunal considers it just and equitable to do so.  The principles relating to the assessment of damages at common law are therefore to be applied to the exercise.

 

3.            Miss Thaine’s claim of sex discrimination included complaints of sexual harassment.  Ten separate complaints were made, but the two which were upheld related to the presence of pornographic posters and magazines in the general workshop where the maintenance team was based, and to the signing-in book which members of the maintenance team had to sign when they arrived at work and which should have been kept in the general workshop, but which kept on being removed to the men’s changing room, which resulted in Miss Thaine being subjected to sexist remarks when she went there to collect it.

 

4.            There eventually came a time when Miss Thaine’s psychiatric health broke down.  That prevented her from continuing to work for the LSE.  It is unnecessary to spell out the nature of her ill-health, but the Tribunal was to find that the unlawful discrimination which Miss Thaine had experienced at work had been a “material and effective cause” of her ill-health.  Since it was that ill-health which ultimately led to her dismissal, the Tribunal found that there was a causal link between the unlawful discrimination of her and both her ill-health and her loss of earnings.  It therefore awarded her compensation for her ill-health, injury to feelings and loss of earnings.  The latter heads of loss – injury to feelings and loss of earnings – are well established.  The former – ill-health – is less so, but it is nevertheless clear that compensation for unlawful discrimination can include injury to health caused by the discrimination, provided that the tribunal thinks that it is just and equitable to make such an award.  That was decided in the context of race discrimination by Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170, but the similarity of the statutory regimes for race discrimination and sex discrimination means that the principle applies to sex discrimination as well.

 

5.            However, crucially, the Tribunal found that a number of other factors had contributed to Miss Thaine’s ill-health.  The Tribunal described them as “concurrent causes” of her ill-health.  They included her history outside work, obsessive-compulsive disorder and depressive episodes since 2003, the break-up of her relationship with her boyfriend, and concern over her mother’s health.  In addition, there were the serious allegations which she had made against the LSE which the Tribunal had found had not amounted to the unlawful discrimination of her by the LSE, even though in at least one of those cases the fact that she had been the victim of sexual harassment was not in doubt.  Indeed, even in those cases where the Tribunal had found that she had not been subjected to discrimination at all, the fact was that in respect of at least some of them Miss Thaine had “in her own mind” thought that she had been discriminated against.  These factors led the Tribunal to conclude that her compensation had to be reduced to reflect the fact that those other factors had contributed to her ill-health.  Moreover, the Tribunal noted that the consultant psychiatrist who had been jointly instructed to prepare a report on her had referred to her having exaggerated things and having been inconsistent, and the Tribunal itself found her not to be a wholly reliable witness.   That was the background against which the Tribunal assessed the extent to which the unlawful discrimination of her had contributed to her ill-health at 40%.  It therefore discounted the compensation it would otherwise have awarded her by 60%.

 

6.            The principal issue which this appeal raises is whether the Tribunal erred in law in reducing the award to reflect the LSE’s limited responsibility for Miss Thaine’s ill-health. In short, when a tribunal finds that loss has been sustained by an employee caused by a combination of factors, some of which amounted to unlawful discrimination for which the employer is liable, but others which were not the legal responsibility of the employer, is it legally open to the tribunal to discount the award by such percentage as would reflect its apportionment of that responsibility?

 

7.            The Employment Appeal Tribunal has been confronted with that question before in a case which factually was on all fours with Miss Thaine’s.  The case was HM Prison Service v Salmon [2001] IRLR 425.  That too was a case of sexual harassment in which the Prison Service was found to have permitted a humiliating working environment for women officers.  Male colleagues openly read pornographic magazines and engaged in unacceptable sexual banter.  Mrs Salmon suffered psychiatric ill-health, but the tribunal reduced the award for that ill-health by 25% to reflect the fact that her history of depression had contributed to her ill-health to that extent.  One of the issues on which the Prison Service appealed to the Employment Appeal Tribunal (Mr Recorder Underhill QC (as he then was) presiding) related to that discount.  The Prison Service argued the discount was not enough and that it should have been at least 50%.  However, unlike the present case, there was no cross‑appeal by Mrs Salmon that no discount should have been made at all.  So the Employment Appeal Tribunal did not have to decide the issue of principle which Miss Thaine’s case raises.  However, it expressed as an aside some thoughts on the topic at [20]:

 

“…there may be some room for argument about whether the approach adopted by the Tribunal was correct in principle.  Conventionally, a claimant is entitled to recover damages on a 100% basis where the tortfeasor’s act has made a material contribution to his suffering the injury in question, even though there may have been other (or even more) material contributory causes.  On that basis, the fact that a victim has a pre‑existing vulnerability to injury, or that the injury was only part of a complex of causes, is no ground – as such – for reducing his or her damages.  That is not to say that it is wholly irrelevant.  To the extent that the court concludes that by reason of that vulnerability the injury in question might well have occurred in any event, that factor would be reflected in the overall quantification of damages: that may produce a similar result to what would have been achieved by an apportionment of causation, but the reasoning is different and it will certainly not always do so.  These principles have been applied in cases of psychiatric injury in such cases such as Page v Smith (No 2) [1996] 1 WLR 855 and Vernon v Bosley (No 1) [1997] 1 All ER 577.  However, the law as regards material contribution and apportionment of causation has recently been considered again by the Court of Appeal in Holtby v Brigham and Cowan (Hull) Ltd [2000] 3 All ER 420 (and see now, decided since the argument in this case, Allen v British Rail Engineering Ltd [2001] EWCA Civ 242); and the conventional view summarised above may be in doubt.  Neither party, understandably, was anxious on this appeal to enter these treacherous waters.”

 

8.            The Tribunal in our case appears to have given Salmon more weight than it otherwise deserves.  It said that Salmon was “authority for the proposition advanced by the [LSE] that we find that the [LSE’s] unlawful discrimination made a material contribution to [Miss Thaine’s] psychiatric injury, then we can nevertheless reduce the compensation payable on the basis of an appropriate apportionment of the extent of the contribution which the unlawful conduct of the employer made to the causation of [Miss Thaine’s] illness”.  That is not correct.  Salmon was not authority for that proposition, but the Tribunal’s error is immaterial if, on an analysis of the relevant authorities, the approach which the Tribunal wrongly thought Salmon sanctioned was indeed the correct approach.

 

9.            We should add that a number of authorities were cited to the Tribunal, which the Tribunal described as dealing “with personal injury cases and situations where there was more than one employer contributing to the damage suffered by the claimant”.  The Tribunal said that it did not find those authorities “particularly helpful”.  The Tribunal did not say why, but presumably it was because Miss Thaine’s case was not one in which it was alleged that more than one employer had contributed to her ill-health.  What was alleged was that factors unconnected with work, and factors at work but which were unconnected with her unlawful discrimination, had contributed to her ill-health.  For our part, we have been assisted considerably by the authorities cited to the Tribunal in our search for the relevant principles.

 

10.         The issue of principle which Miss Thaine’s case raises has until recently been considered in cases of industrial disease, in particular in those industries where the worker has been exposed to hazards over a very long period.  In some industries, it was not realised that an employee could be exposed to danger by those hazards at all, and so the employers could not have been at fault until such time as their knowledge of the danger made them liable for their continuing failure to address it.  Those cases showed that no damages could be awarded for the worker’s eventual condition to the extent that it was attributable to the period before his employer’s liability arose.

 

11.         That approach was applied in one of the cases referred to by Mr Recorder Underhill QC and cited to the Tribunal.  That case was Holtby v Brigham and Cowan (Hull) Ltd [2000] ICR 1086.  Mr Holtby has been exposed to asbestos dust with a series of employers over 24 years or so.  He had been employed by the company against whom he brought his claim for about half that time.  Stuart-Smith LJ said at [20] that the defendant was liable only to the extent that its “conduct made a material contribution to his disability”.  Stuart-Smith LJ added that the “question of apportionment may be difficult and the court only has to do the best it can using its common sense”.  The court, he said, “must do the best it can to achieve justice, not only to the claimant, but also to the defendant, and among defendants”.

 

12.         The same approach was adopted in Allen v British Rail Engineering Ltd [2001] ICR 942, another case referred to by Mr Recorder Underhill QC and also referred to the Tribunal.  Mr Allen suffered from a condition caused by the use of hand-held vibrating tools while working for the defendant.  His award was reduced, amongst other reasons, to reflect the fact that had the defendant complied with the duty of care it owed him, his exposure to injury would have been reduced, if not eliminated.  In dismissing an appeal from the award, Schiemann LJ enunciated at [20] a number of principles which emerged from the case law.  Principles (ii), (iii) and (iv) are relevant for present purposes.  They are:

 

“(ii) There can be cases where the state of the evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the claimant complains; for instance where a passenger is killed as the result of a head‑on collision between two cars each of which was negligibly driven and in one of which he was sitting.

(iii) However, in principle the amount of the employer’s liability will be limited to the extent of the contribution which his tortious conduct made to the employee’s disability.

(iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct.”

 

Schiemann LJ added at [21]:

 

“The application of those propositions should lead to a just and principled result.  We mention by way of coda that this approach seems to accord with the view of the authors of the American Law Institute Restatement of the Law, Torts, 2d (1965), section 433A(e):

‘Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct.’”

 

That is particularly relevant here, since one of the “concurrent causes” of Miss Thaine’s ill-health were the other acts of discrimination as Miss Thaine perceived them to be on the part of the LSE.

 

13.         These two cases support the approach which the Tribunal adopted in the present case, and we turn to those cases which are said by Ms Sabrina Sullivan for Miss Thaine to indicate a different approach.  Those cases were decided in the context of causation, namely whether the defendant could be said to have caused the claimant’s harm.  The conventional test for causation is the “but for” test: the defendant’s wrongful conduct will be said to have been the cause of the claimant’s harm if that harm would not have occurred without that wrongful conduct, i.e. but for that wrongful conduct.  However, a series of cases have considered the appropriateness of that test when the wrongful conduct was that of more than one person or company, or consisted of more than one event, and it was not possible to tell whose conduct or which event had caused that harm.  Two of the cases cited to us, which were also cited to the Employment Tribunal, illustrate that development in the law. 

 

14.         The first is Bonnington Castings Ltd v Wardlaw [1956] AC 613.  In that case, the claimant had been exposed to silica dust from two sources at work: a pneumatic hammer and some swing grinders.  He contracted pneumoconiosis as a result.  There was no breach of duty in respect of the claimant’s exposure to the dust from the pneumatic hammer because at the time no extractor plant was either known of or practicable for use with the pneumatic hammer.  However, there was a breach of duty in respect of the claimant’s exposure to the dust from the swing grinders.  The House of Lords held that liability had been established because the dust from the swing grinders had materially contributed to the onset of the disease.  In such a situation, the law was substituting for the “but for” test a test of whether the breach of duty had materially contributed to the harm.

 

15.         The second case is McGhee v National Coal Board [1973] 1 WLR 1.  In that case, the claimant had contracted dermatitis.  There were two possible sources.  One source was the brick dust to which he had been exposed at work when emptying brick kilns, but his employers were found not to have been in breach of the duty of care they owed him in respect of that exposure.  The second possible source was brick dust which was still on his body when he cycled home from work because he had not been able to shower at work since his employers had removed the showers he would otherwise have used.  The removal of those showers was found to have been in breach of the duty of care they owed him.  The interesting feature of the claimant’s dermatitis was that it could have started from a single abrasion, which itself could have occurred either during his non‑negligent exposure to dust when emptying the kilns, or during his negligent exposure to dust when cycling home.  The difference between this case and that of Bonnington was that the progress of the disease in Bonnington was cumulative, whereas in McGhee it could have arisen as a result of a single abrasion.  Once again, though, the House of Lords held that liability had been established because the failure to provide facilities for Mr McGhee to shower had materially contributed to the risk of injury.

 

16.         Bonnington and McGhee were both cases decided by the House of Lords.  In both cases the defendant’s breach of duty was found to have materially contributed to the claimant’s respective diseases.  In neither case were the claimant’s damages reduced to reflect that there was another event which had or could have materially contributed to the diseases from which the claimants suffered.  Accordingly, Bonnington and McGhee are the basis for the argument advanced on behalf of Miss Thaine.  Since the Tribunal found that the discrimination of her at work materially contributed to her ill-health, or to use the language of the Tribunal it was a “material and effective cause” of her ill-health, there should not have been any reduction in her award to reflect the fact that other features in her life and at work were a material and effective cause of her ill-health as well.

 

17.         In our view, the reliance on Bonnington and McGhee is misconceived.  In neither case was it argued that even if causation had been established there had to be a reduction in the damages to reflect that some of the exposure of the claimants to dust was negligent and some of it was non‑negligent.  That led Stuart-Smith LJ in Holtby to say at [20]:

 

“He [the claimant] will be entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability.  But strictly speaking the defendant is liable only to the extent of that contribution.  However, if the point is never raised or argued by the defendant, the claimant will succeed in full as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1.”

 

This passage neatly illustrates the critical distinction which the law makes.  The test for causation when more than one event causes the harm is to ask whether the conduct for which the defendant is liable materially contributed to the harm.  In this case, the Tribunal found that it did, and therefore the LSE was liable to Miss Thaine.  But the extent of its liability is another matter entirely.  It is liable only to the extent of that contribution.  It may be difficult to quantify the extent of the contribution, but that is the task which the Tribunal is required to undertake.  It did that in this case by saying that the unlawful discrimination to which Miss Thaine was subjected at work was 40% responsible for her ill-health, and by therefore discounting her award by 60%. 

 

18.         How do these principles apply to cases of psychiatric ill-health like Miss Thaine’s?  Mr Tom Brown for the LSE says that the answer is to be found in Hatton v Sutherland [2002] ICR 613.  That was one of four cases considered together by the Court of Appeal which examined a number of issues arising from work‑related stress.  Hale LJ (as she then was) gave the judgment of the court.  At [36]-[42] she examined the approach to apportionment and quantification in cases of work‑related stress.  She said at [36]-[37]:

 

“36. Many stress‑related illnesses are likely to have a complex aetiology with several different causes.  In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible […]  The Thompson and Holtby cases concerned respectively deafness and asbestosis developed over a long period of exposure; not only were different employers involved but in Thompson some of the exposure by the same employer was tortious and some was not.  Apportionment was possible because the deterioration over particular periods of time could be measured, albeit in a somewhat rough and ready fashion.

37. It is different if the harm is truly indivisible: a tortfeasor who has made a material contribution is liable for the whole, although he may be able to seek contribution from other joint or concurrent tortfeasors who have also contributed to the injury.  In the Rahman case [2001] QB 351, 361, para 17, Laws LJ quoted the following illuminating discussion from Prosser & Keeton on Torts, 5th ed (1984), pp 345‑346:

“If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it.  If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effect of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule … If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries … There will be obvious difficulties of proof as to the apportionment of certain elements of damages, such as physical and mental suffering and medical expenses, but such difficulties are not insuperable, and it is better to attempt some rough division than to hold one defendant [liable] for the wound inflicted by the other.  Upon the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff’s rights in the water, and to make some division of the damages.  It is not possible if the oil is ignited, and burns the plaintiff’s barn.”

 

The reference in that extract to Thompson was a reference to Thompson v Smiths Ship Repairers (North Shields) Ltd [1984] QB 405.

 

19.         Having then considered the cases of Bonnington, McGhee and Holtby, and having touched on the evidential difficulties raised by cases of this kind, Hale LJ concluded her analysis at [41] in this way:

 

“Hence if it is established that the constellation of symptoms suffered by the claimant stems from a number of different extrinsic causes then in our view a sensible attempt should be made to apportion liability accordingly.  There is no reason to distinguish these conditions from the chronological development of industrial diseases or disabilities.  The analogy with the polluted stream is closer than the analogy with the single fire.  Nor is there anything in Bonnington Castings Ltd v Wardlaw [1956] AC 613 or McGhee v National Coal Board [1973] 1 WLR 1 requiring a different approach.”

 

Again, this is powerful support for the Tribunal’s approach in Miss Thaine’s case, though it has to be said that Hale LJ’s remarks should be treated as an aside because the question of apportionment did not actually arise on any of the four appeals.  

 

20.         The same issue was discussed in Dickins v O2 Plc [2008] EWCA Civ 1144, another case of work‑related stress.  At first instance, the Judge when assessing damages took account of various other non‑tortious factors which had contributed to the employee’s ill-health, and had reduced the amount he would otherwise have awarded by 50%.  As in Salmon, the question which arose on the appeal related to the level of the apportionment, not to whether the apportionment was wrong as a matter of principle.  So once again, what was said must be treated as an aside, but what Smith LJ said at [46] was this:

 

“I respectfully wish (obiter) to express my doubts as to the correctness of Hale LJ’s approach to apportionment.  My provisional view (given without the benefit of argument) is that, in a case which has had to be decided on the basis that the tort has made a material contribution but it is not scientifically possible to say how much that contribution is (apart from the assessment that it was more than de minimis) and where the injury to which that has [led] is indivisible, it will be inappropriate simply to apportion the damages across the board.  It may well be appropriate to bear in mind that the Claimant was psychiatrically vulnerable and might have suffered a breakdown at some time in the future even without the tort.  There may then be a reduction in some heads of damage for future risks of non‑tortious loss.  But my provisional view is that there should not be any rule that the judge should apportion the damages across the board merely because one non‑tortious cause has been in play.”

 

Sedley LJ voiced the same concerns as Smith LJ, though Wall LJ expressly declined to comment on what Smith LJ had said, and in any event, Smith LJ’s view was not only an aside, but a very provisional one at that.  Understandably there was no analysis of the line of authorities considered by Hale LJ.  That led Sedley LJ to add at [54]:

 

“While the obiter dicta of Hale LJ in Hatton are, as always, entitled to the greatest respect, the stare decisis principle requires courts of first instance, at least for the present, to take their cue in this regard from Bailey.”

 

That was a reference to Bailey v Ministry of Defence [2008] EWCA Civ 883, but that did not address the issue of apportionment directly, because it had not been suggested in that case that the claimant’s damages should have been apportioned.

 

21.         We have considered whether the other cases which have been cited to us support or undermine the conclusions we have reached in terms of principle from Holtby and Allen and the guidance afforded by Hale LJ’s considered view, albeit by way of an aside, in Hatton v Sutherland.  Two cases are relied on by Ms Sullivan.  The first is Hotson v East Berkshire Area Health Authority [1987] AC 750.  In that case, a schoolboy was injured at school.  However, his injury was only diagnosed by doctors five days later.  If it had been correctly diagnosed immediately, and treated appropriately at the time, there would have been a 75% risk of a particular condition developing, whereas the original doctor’s negligence in failing to diagnose the injury earlier had resulted in that risk becoming a certainty.  The area health authority would have been vicariously liable for such loss as was found to be attributable to the original doctor’s negligence, but it was held not to be liable at all because the sole cause of the loss had been the accident.  So the case was decided on the basis of a lack of causation, i.e. the doctor’s negligence had not caused or materially contributed to the condition which the boy eventually developed.  However, there is a passage in the speech of Lord Bridge at p. 783A-B on which reliance is placed:

 

“As I have said, there was in this case an inescapable issue of causation first to be resolved.  But if the plaintiff had proved on a balance of probabilities that the authority’s negligent failure to diagnose and treat his injury promptly had materially contributed to the development of avascular necrosis, I know of no principle of English law which would have entitled the authority to a discount from the full measure of damage to reflect the chance that, even given prompt treatment, avascular necrosis might well still have developed.  The decisions of this House in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1 give no support to such a view.”

 

That is unsurprising.  The question of a discount had not been argued in Bonnington or McGhee.  As we have said, there was no claim for an apportionment in those cases.  The defendants had argued, admittedly unsuccessfully, that they should not be held liable at all.  There was therefore no principle of English law at the time of Hotson for the discount for which the area health authority would have argued if it had failed on the issue of causation.  The development of the law to give effect to that came later with the cases of Holtby and Allen.

 

22.         Finally, there is the case of the The Environment Agency v Ellis [2009] PIQR P5.  In that case, the claimant injured his back at work when he fell from a machine.  His employers were liable for negligence and breach of statutory duty in respect of that accident.  His injury, though, was exacerbated when he fell from a ladder at work the following year, and when he fell down some stairs at home in the year after that.  Apportionment of the damages between these three falls, which the Judge at first instance had allowed, was held by the Court of Appeal to be inappropriate.  May LJ at [39] of the judgment characterised the case as “essentially a single accident case”, and he said that “the Holtby/Allen principles” do not apply to single accident cases as distinct from cases of injury arising from successive exposures to harm.  That may be so, but Miss Thaine’s case is much closer to the latter class of case than the former.  She was exposed to unlawful discrimination at work over a lengthy period of time, and that was accompanied by a series of events in her personal life and a succession of events which she had persuaded herself amounted to other examples of discrimination at work.  Unsurprisingly, Dickins was not referred to the court as judgment in Dickins had been handed down the day before judgment in Ellis was handed down.  Hatton was not referred to in the judgment either.  It is therefore questionable whether Ellis has any relevance to cases of psychiatric ill-health arising from a variety of concurrent causes.

 

23.         At the end of the day, we think that the weight of authority supports the approach taken by the Tribunal in this case.  Indeed, it accords with our sense of what fairness dictates.  As Mustill J (as he then was) said in Thompson, one of the original cases on the topic which was expressly approved and followed in both Holtby and Allen, at pp 443D-444A:

 

“If we know – and we do know, for by the end of the case it was no longer seriously in dispute that a substantial part of the impairment took place before the defendants were in breach, why, in fairness, should they have been made to pay for it?  The fact that precise quantification is impossible should not alter the position.  The whole exercise of assessing damages is shot through with imprecision … I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault.  What justice does demand, to my mind, is that the court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment.”

 

We similarly ask: why should the LSE have to compensate Miss Thaine for her psychiatric ill-health and its consequences in its entirety when the unlawful discrimination for which it was responsible, though materially contributing to her psychiatric ill-health, was just one of the many causes of it?  The first ground of appeal must therefore be dismissed.

 

24.         We turn to the second ground of appeal.  There is no challenge to the Tribunal’s finding that Miss Thaine’s perception of how she was treated at work which had not amounted to unlawful discrimination of her by the LSE were among the “concurrent causes” of her ill-health.  What the second ground of appeal challenges is the Tribunal’s finding that there were things in her personal life which were among the “concurrent causes” of her ill-health.  There is said to have been no evidence to support such a finding, and that such evidence as there was suggested the very opposite.  That evidence consisted of a passage in a report on Miss Thaine prepared by Dr Jan Wise, a consultant psychiatrist instructed jointly by Miss Thaine’s representatives and the LSE’s solicitors, which reads:

 

“In the absence of other stressors, which I cannot find evidence for, the cause of the above injury, [i.e. the nature of the condition which constituted her psychiatric ill-health], is the perception of treatment at work.”

 

In a subsequent letter, Dr Wise wrote:

 

“For the avoidance of doubt I have not been able to elicit any events outside of the work environment which would have materially contributed to her mental illness.”

 

25.         The Tribunal clearly thought otherwise.  It was entitled to do so.  It did not have to accept Dr Wise’s evidence.  Indeed, in respect of Dr Wise’s evidence, it said this:

 

“We did not hear any oral evidence from Dr Wise.  This was unfortunate because we detected inconsistencies in the medical evidence, in particular between the first report of Dr Wise, which was prepared for the disability discrimination claim, and the second report we have just referred to.  The first report is dated 26 September 2008.  It refers to medical records or GP records which Dr Wise appears to have only from January 2006.  The medical records that have been disclosed to us go back before that, and [show Miss Thaine] was diagnosed with [an] obsessive compulsive disorder in November 2003, and with a depressive order secondary to that in 2004.”

 

Later the Tribunal said:

 

“We have also seen a letter from [Miss Thaine’s] therapist, Ms Florence Ekiko, who saw [Miss Thaine] in about April 2009.  Ms Ekiko refers to [Miss Thaine] being referred for symptoms of depression and anxiety which she had experienced since 2004, and refers to a background of mild [obsessive-compulsive disorder.]  [Miss Thaine] told Ms Ekiko, however, that she had actually felt depressed since 2006, which of course is the year that she began with her employment with the [LSE].  We wonder, in the light of what [Miss Thaine] said to Ms Ekiko, and the fact that Dr Wise appears only to have medical records from 2007, whether [Miss Thaine] has actually deliberately suppressed evidence relating to her mental state before 2006.  We note in particular that [Miss Thaine] did not disclose the earlier medical records, it would appear, including Ms Ekiko’s letter, until the Friday before the hearing.  There was an issue as to whether Dr Wise needed to revisit the case, in the light of the recently disclosed records, and indeed further records that [Miss Thaine’s] mother went to get on the morning of the hearing.”

 

26.         Moreover, Dr Wise’s report referred to the notes of Miss Thaine’s GP which talked of Miss Thaine’s break-up with her boyfriend and her concern over her mother who had cancer.  To the extent that Miss Thaine denied that there was anything in her personal life which had contributed to her ill-health, it should be noted that the Tribunal accepted Dr Wise’s evidence that Miss Thaine was prone to exaggerate things, and as we have said it described Miss Thaine as not a wholly reliable witness.  In our view, there was evidence on which the Tribunal could reasonably find that there were factors in Miss Thaine’s personal life which could properly be regarded as “concurrent causes” for her ill-health.

 

27.         Allied to this ground of appeal, it is argued that, for the Tribunal to have taken into account Miss Thaine’s pre‑existing depression and obsessive-compulsive disorder, the Tribunal was wrongly giving effect to her pre-existing vulnerability which the courts have said in the eggshell skull cases, such as Smith v Leech Brain and Co Ltd [1962] 2 QB 405, is not a proper approach.  The difficulty with that argument is that the principle that a tortfeasor must take its victim as it finds him is relevant to the issue of remoteness of damage rather than to the issue of causation or the apportionment of damage.  Thus, in Smith v Leech Brain itself, Parker LCJ said at p. 415:

 

“The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that he would die.  The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn.  What, in the particular case, is the amount of damage which he suffers as a result of that burn depends upon the characteristics and constitution of the victim.”

 

28.         For these reasons, we dismiss the second ground of appeal, and it follows that this appeal must be dismissed in its entirety.