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Text of an article by
Michael Salter and Chris Bryden first published in the New Law Journal on 9th May 2008 (Vol 158, No. 7320 pages 652-653) |
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| Michael Salter | Chris Bryden |
| Compensation Awarded Under The Protection from Harassment Act 1997 |
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| Introduction | ||||
| The House of Lords’ well known decision in Majrowski v Guy’s and St Thomas’s NHS Trust [2006] IRLR 695 opened up the Protection from Harassment Act 1997 (“PfHA 1997”) in the field of employment relationships. Albeit somewhat tempered by the Court of Appeal’s decision in Sunderland City Council v Conn [2008] IRLR 325, the PfHA 1997 has potential to impact people in most walks of life, be they employee, neighbour or victim of harassment. | ||||
| It is well known that victims of harassment can obtain injunctive relief against their harassers pursuant to the Family Law Act 1996, Protection from Harassment Act 1997 (“PfHA 1997”) and basic common law principles covering injunctions and torts. However, section 3(2) of PfHA 1997 also allows for the recovery of compensation from the harasser. The section states: | ||||
| 3 Civil Remedy | ||||
| (2) …damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment | ||||
| However, despite being some 11 years old there is little case law on the quantum of damages for claims under the 1997 Act, and what law there is generally only of first instance authority. Financial compensation is particularly relevant where the conduct complained of has ceased, as in such circumstances an injunction is no longer needed: the employee may have stopped working for the harassing boss, the neighbours may have moved away or the harasser may have been arrested. Indeed, given a six year limitation period, there is scope for claims for compensation to be brought some considerable time after the actual harassment has ceased. Equally, where the harassment is ongoing, the risk of paying financial compensation may have the effect of “focusing the mind” of the harasser and causing him to cease his harassing actions. | ||||
| Notwithstanding the importance of its function, section 3(2) of the 1997 Act leaves open the fundamental question: on what basis should such compensation be assessed? In the important case of Kuwait Airways Corporation v Iraq Airways Co. [2002] 2 WLR 53, a case not involving claims for harassment but of general application to the scope and measure of damages, Lord Nichols of Birkenhead in stated: | ||||
| 71 In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name. Usually, there is no difficulty in selecting, from the sequence of events leading to the plaintiff's loss, the happening which should be regarded as the cause of the loss for the purpose of allocating responsibility. In other cases, when the outcome of the second inquiry is not obvious, it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant's obligation in the particular circumstances. What was the ambit of the defendant's duty ? In respect of what risks or damage does the law seek to afford protection by means of the particular tort? | ||||
| This article seeks to consider other areas of law to draw similarities and obtain guidance which usefully can be applied to ascertaining the quantum of damages in harassment cases. | ||||
| It seems reasonable to assume that damages for harassment are likely, generally speaking, to be made up in the main of compensation for psychiatric injury. There may also be special damages, for example for torn clothing or broken items after a struggle or caused by running away, are fairly simple to quantify on the basis of actual loss. | ||||
| In the traditional arena in which psychiatric injury in recognised, that of personal injury, compensation can be awarded for recognised psychiatric illnesses in accordance with the House of Lords’ decision in McLoughlin v O’Brien [1983] 1 AC 410. Lord Bridge in that case stated: | ||||
| “The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or reactive depression may be a recognisable psychiatric illness….So, the first hurdle that the plaintiff must surmount, when claiming damages, is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness” (at page 431G) | ||||
| Despite a number of subsequent cases on psychiatric injury, mere anxiety is not enough, without there also being some physical injury, for a successful personal injury claim. There needs to be a recognised psychiatric illness for compensation to be awarded. It would therefore appear that the 1997 Act goes further than the common law of personal injury by not actually requiring the victim to suffer such an illness before allowing compensation. If this is so, guidance as to compensation levels drawn from the common law relating to personal injury must be viewed with caution. | ||||
| Further guidance in quantifying damages for harassment may be drawn from another scheme that awards damages for anxiety: the Criminal Injuries Compensation Board (“CICB”). The current scheme has been in place since April 2001 and provides the following guidance concerning levels of injury: | ||||
| Mental illness and temporary mental anxiety | ||||
| 8. Mental illness includes conditions attributed to post-traumatic stress disorder, depression and similar generic terms within which there may be: | ||||
| (a) such psychological symptoms as anxiety, tension, insomnia, irritability, loss of confidence, agoraphobia and preoccupation with thoughts of guilt or self-harm; and | ||||
| (b) related physical symptoms such as alopecia, asthma, eczema, enuresis and psoriasis. | ||||
| 9. “Medically verified” means that the mental anxiety has been diagnosed by a registered medical practitioner. | ||||
| 10.“Psychiatric diagnosis/prognosis” means that the disabling mental illness has been diagnosed or the prognosis made by a psychiatrist or clinical psychologist | ||||
| 11. A mental illness is disabling if it significantly impairs a person’s functioning in some important aspect of her/his life e.g. impaired work or school performance or significant adverse effects on social relationships or sexual dysfunction. | ||||
| Disabling but temporary mental anxiety lasting more than 6 weeks, medically verified | £1,000 |
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| Disabling mental illness, confirmed by psychiatric diagnosis: | ||||
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lasting up to 28 weeks | £2,500 |
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lasting over 28 weeks to 2 years | £4,400 |
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lasting 2 years to 5 years | £8,200 |
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lasting over 5 years but not permanent | £13,500 |
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| Permanent mental illness, confirmed by psychiatric prognosis | ||||
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moderately disabling | £19,000 |
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seriously disabling | £27,000 |
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| Again, however, it appears the CICB requires a recognised psychiatric condition or medical diagnosis before any award can be made for anxiety. Furthermore, the CICB scheme will not award damages for a “mental injury” without physical injury unless the circumstances of the cause of the injury fall within paragraph 9 of the scheme which covers certain categories of offences. | ||||
| Traditionally also, damages for alarm and distress have been found in contract claims: Jarvis v Swan Tours Ltd [1973] QB 233 and Jackson v Horizon Holidays [1975] 1 WLR 1468 being leading examples, with low amounts being awarded (£125 and £500 respectively). Whilst the inclusion of the words “any anxiety caused by the harassment” within section 3(2) of the PfHA 1997 seems to amount to a causative test along the lines of contract law, it is however difficult to compare the concept of harassment to damages for distress in relation to breach of contract. Nonetheless the quantum of these awards show in this context that, on their own, alarm and distress do not sound in substantial damages. | ||||
| In fact, pursuant to section 3 of the PfHA 1997 harassment amounts to a statutory tort. Rather than a simple causative test, tortious claims import a forseeability test for recovering damages, with the traditional rules such as the “egg-shell skull” and “egg-shell personality” applying. This should be compared with the Court of Appeal’s decision in Essa v Laing Ltd. [2004] ICR 746 (Rix LJ dissenting) where it was held that for the purposes of the statutory tort of race discrimination the victim was to be compensated for the damage that arose as a consequence and directly from the act, without the need for the traditional concepts of reasonable forseeability. On balance however it seems likely that for harassment damages the traditional tortious rules will apply. | ||||
| Some authorities on non-contractual anxiety compensation show an equally low level of compensation to the contractual cases being awarded. In Westminster Council v Heyward [1997] 3 WLR 641 the Pensions Ombudsman awarded Mr Heyward £1,000 for “distress and inconvenience in respect of the anxiety which he had suffered” as a result of maladministration. In Ford v Large [1992] CLY 1563 the Claimant was awarded £3,000 compensation after a car accident for anxiety whilst driving. | ||||
| These low levels of compensation should, however, be compared to the levels of injury to feeling awards recoverable in the Employment Tribunal for successful claims of discrimination. The starting point for the assessment of any such compensation is the well known guidelines laid down in Chief Constable of West Yorkshire v Vento [2003] IRLR 102. That case set down three brackets for injury to feelings damages: £500-£5,000; £5,000-£15,000 and £15,000-£25,000 (currently with RPI applied now worth £592-£5,921; £5,921-£17,764 and up to £29,607). Can these brackets provide a basis for the quantification of damages under PfHA 1997? | ||||
| The civil courts do not award damages to “injury to feelings” as a separate head of claim in tortious matters and so any sums for anxiety awarded under PfHA 1997 are likely to be covered in any award made in a PI claim: Green v DB Group Services (UK) Ltd. [2006] IRLR 764, a case that caused many employers to panic when the Claimant was awarded over £800,000. However, this was a traditional PI claim brought on the basis of stress at work, with a PfHA1997 claim bolted on in the alternative. The Claimant did not receive any separately quantified compensation for the PfHA 1997 claim. This has led many to feel that claims under PfHA 1997 will not provide much in the way of compensation. This may be correct when compared to psychiatric PI claims where the PfHA1997 merely comprises an alternative cause of action to such claims (eg where there is a risk that the medical evidence will not show a causative link between the conduct and the illness (a major risk in stress at work claims)). | ||||
| However, as in Vento, standalone claims under PfHA 1997 may not involve a Claimant who has any sort of injury beyond injury to feelings caused by the harassment. Indeed, given the incomplete list of recoverable heads of claim contained in section 3(2) the authors believe that there is at the very least strong scope for arguing for the application of Vento-type brackets to claims under PfHA1997. At the very least the Claimant may be able to recover damages for injured feelings under section 3(2). Factors such as the length of time that harassment has taken place, the form it took, and the effect it had all play a part in determining what the level of compensation is to be. Whilst the barrier of the traditional tortious measure of damages would have to be overcome, the fact that the statutory tort created by PfHA 1997 appears to be of a broader nature in terms of recoverability of damages makes it more similar to the Vento-type situation than traditional personal injury claims. | ||||
| It must also not be forgotten that damages under PfHA 1997 are not limited to psychiatric injury alone. Section 3(2) makes it clear that financial losses resulting from the harassment can also be recovered. The following heads of claim may therefore be recovered as special damages: | ||||
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Lost salary | |||
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Bonuses and other payments/benefits | |||
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Any sums the employee has to repay to the employer by way of a loan if the employee leaves employment; | |||
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Whilst more likely in a neighbour dispute than an employment -based claim, if the victim has had to move home and lost money on the sale of their property then arguably the difference would be claimable… | |||
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…this may lead to additional costs of travelling into work. | |||
| Practical Steps and Guidance | ||||
| It is important when considering issuing a claim for damages under PfHA 1997 that the necessary evidence is assembled to allow any letter before action to schedule the general and special damages claimed. Medical evidence may well be necessary to determine whether a claim can be brought. | ||||
| Conclusion | ||||
| At present the assumption when approaching damages for anxiety and distress for harassment is likely to be that nominal damages only will be awarded. However there is scope for argument that the broader basis of the statutory tort of harassment takes the quantification of damages out of the general rules applicable to personal injury and is more correctly identified with Vento-type bands of awards for injury to feelings in discrimination cases. Whilst at present there is no authority directly on this point it is hoped that a suitable case allowing for a challenge along these lines will soon present itself. | ||||