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Neutral Citation Number:
Reported Number:	R(CR)1/07
File Number:	CCR 2658 2006
Appellant:
Respondent:
Judge/Commissioner:	Judge E. A. L. Bano
Date Of Decision:	04/06/2007
Date Added:	19/06/2007
Main Category:	Compensation recovery
Main Subcategory:	cause of payment of benefits
Secondary Category:	Compensation recovery
Secondary Subcategory:	cause of payment of benefits
Notes:	Compensation recovery – cause of payment of benefits – whether compensator can assert that injury was caused in a different way from that asserted in claim The claimant was dismissed on 15 March 1994 following a long period of suspension and disciplinary proceedings and was awarded benefits from 17 March 1994. He made a statutory claim for compensation for unfair dismissal, which was successful. He then started civil proceedings against his former employers for damages for psychiatric injury. While those proceedings were pending, the House of Lords delivered its judgment in Johnson v Unisys Limited [2001] UKHL 13, [2003] 1 AC 518, [2001] ICR 480, in which it upheld the striking out of a claim for damages arising out of the manner of dismissal of an employee whose complaint of unfair dismissal had been upheld by an industrial tribunal. In the light of Johnson, the claimant applied to amend his Statement of Claim by claiming only in respect of events which had occurred prior to his dismissal. His case was eventually heard by the House of Lords together with Eastwood v Magnox Electric plc [2004] UKHL 35, [2005] 1 AC 503, [2004] ICR 1064. The House of Lords there held that the principle that damages cannot be recovered in respect of matters within the scope of an unfair dismissal claim (the “Johnson exclusion zone”) did not prevent the claimant from pursuing his claim for damages in respect of psychiatric injury caused by his employer’s treatment of him before his dismissal. An award of damages was then agreed and the Secretary of State issued a certificate in respect of benefits paid to the claimant in the period from 17 March 1994 to 16 March 1999. The compensators appealed on the ground that the alleged injury in respect of which benefit had been paid had in fact been caused by the claimant’s dismissal, and so, as a result of Johnson, lay outside the scope of the damages claim. The tribunal upheld the appeal, finding that the process of dismissal started in September 2003 and that on the basis of medical evidence the claimant’s psychiatric injuries started after that date. The Secretary of State appealed to the Commissioner. Held, allowing the appeal, that: 1. the boundary between the common law and statutory claims was defined by the matters which lay within the scope of the common law and statutory claims respectively and so, since the employment tribunal does not have power to make an award in respect of non-pecuniary loss, such as mental injury caused to the claimant by events prior to and leading up to his dismissal, the tribunal was in error in seeking to identify a point in time prior to the dismissal at which the process of dismissal could be said to have begun (paragraphs 21 to 23); 2. once a compensator makes a payment in respect of a claim that a specific injury has occurred in a particular way, it is not open to the compensator to assert in the compensation recovery proceedings that the claimant in fact suffered some other injury, or suffered the injury asserted in the claim in some way other than that alleged (CCR/2232/2006 followed) (paragraph 24); 3. on that basis the post-traumatic stress disorder which began in May 1993 was an effective cause of the claimant’s illness throughout the period while he was in receipt of relevant benefits and therefore the tribunal was bound to find that the injury alleged in the amended Statement of Claim was and remained an effective cause of the payment of benefit throughout the relevant period (paragraph 26); 4. the relevant period of recoverable benefits was therefore the period from 13 May 1993 to 12 May 1998 (paragraph 27). The Commissioner directed the Secretary of State to issue a fresh certificate and re-calculate the amount of recoverable benefit accordingly.
Decision(s) to Download:	R(CR)_1-07_bvam.doc