Massey v UNIFI: [2007] EWCA Civ 800

CA: Pill, Wall and Maurice Kay LJJ: 31 July 2007

The claimant was found by an employment tribunal to have been unjustifiably disciplined by her trade union, within the meaning of section 64(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, when on 25 September 2002 it passed a motion of no confidence in her and on 7 January 2003 it debarred her, for two years, from holding any office in the union following her unsuccessful attempt, in disregard of the union's instruction, to seek election to the position of trustee of a pension fund belonging to union members. The claimant's general practitioner's notes dating from January 2003 detailed the claimant's stress, anxiety and insomnia, which lasted until October 2003. The claimant suffered a stroke in November 2004, and the medical evidence was that, although the union's conduct had made a material contribution to the stroke, the claimant would probably have suffered a stroke within 10 to 12 years because of a pre-existing condition. The Employment Appeal Tribunal awarded the claimant, under section 67(5) of the Act, compensation in the sum of £17,000 arrived at by aggregating £7,500 in respect of injury to feelings and £12,500 in respect of personal injury and then discounting the total by 15% by reference to the claimant's contributory conduct, pursuant to section 67(7). The gross figure for personal injury was £50,000 but the appeal tribunal discounted it by 75% having regard to factors, including the stress of litigation, which it regarded as unconnected with the union's conduct found by the appeal tribunal to have contributed to the stroke.

The claimant appealed against the compensation award.

The Court of Appeal held:
(1) In assessing injury to feelings, what was important was their duration and intensity, and, properly construed, the general practitioner's notes indicated feelings of considerable intensity and duration, which for a long time was primarily the result of the unjustified discipline, and if the appeal tribunal had considered that they had given way to litigation stress by or soon after April 2003, that would have been an oversimplification. While the appeal tribunal were correct in placing the claimant's injury to feelings in the middle band of compensatory awards, they were wrong in assessing a figure so far down that band, and the award should be increased to £12,500.
(2) A claim for general damages under section 67 of the 1992 Act was not subject to any test of foreseeability and the claimant was entitled to be compensated for the loss arising directly from the unjustified discipline. Assessment of damages for pain, suffering and loss of amenity was not susceptible of exactness, and the gross figure of £50,000 for personal injury was not manifestly wrong or vitiated by an erroneous approach, and, accordingly, the Court of Appeal would not interfere with it. 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 fact, and the matter not dealt with by apportionment, and, taking a broad brush approach, the gross figure should be reduced to £25,000 to take account only of the claimant's pre-existing medical condition and the acceleration of its consequences.
(3) The 15% discount of the total pursuant section 67(7) was justified, and, accordingly, the claimant was entitled to compensation in the sum of £31,875.

The appeal was allowed.

Appearances: James Laddie (Ford & Warren, Leeds) for the claimant; Philip Jones (Simpson Millar) for the union.