Alan Payne appears in a case concerning the rules relating to remoteness in damages for psychiatric injury

Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 

On 21 November 2014 the Court of Appeal handed down judgment in Yapp v FCO. In allowing the appeal in part the Court considered in detail the rules relating to remoteness in damages claims for psychiatric injury.

Mr Yapp was appointed British High Commissioner in Belize. A year later he was withdrawn from the post and suspended, pending investigation of allegations of misconduct. He then received a written warning. His suspension was lifted, but he developed a depressive illness. He did not in fact receive any other appointment in the Foreign and Commonwealth Office until his retirement. He subsequently commenced proceedings against the FCO, complaining of the withdrawal of his post and the way the disciplinary process was conducted. He said the resulting stress had caused his depressive illness, which both constituted damage in itself, and led to pecuniary loss.

Cranston J found that the withdrawal of Mr Yapp from his post was both a breach of contract and a breach of the duty of care which the FCO owed him at common law (but dismissed the claims in relation to the disciplinary process). In addition, the trial judge held that it was reasonably foreseeable that Mr Yapp would suffer psychiatric harm and held that Mr Yapp could recover for the personal injury aspect of his claim.

The FCO appealed against the finding of liability. It further contended that, even if it were in breach, the claimant was not entitled to recover damages for his depression and its consequences on grounds of causation, foreseeability and/or remoteness.

The Court of Appeal (lead judgment: Underhill LJ) allowed the FCO’s appeal on the issue of remoteness of the claim for psychiatric injury and breach of duty of care. In doing so it carried out an extensive survey of the authorities on remoteness/foreseeability of psychiatric harm at work (at paras 79-133) and the law in this area generally.

The Court came to the conclusion that it was wrong to find that it was reasonably foreseeable that the FCO’s conduct in withdrawing Mr Yapp from post without having had the opportunity to state his case might lead him to develop psychiatric illness. According to the Court, it would be exceptional that an apparently robust employee, with no history of any psychiatric ill health, would develop a depressive illness as a result even of a very serious set back at work. The FCO could not have foreseen, in the absence of any sign of special vulnerability, that the claimant might develop a psychiatric illness as a result of its decision. It therefore followed that if the losses were too remote to be recoverable in tort, they were also too remote to be recoverable in contract.

The Court of Appeal the dismissed the FCO’s appeal against the findings of breach of contract and causation. The case has now been remitted for consideration of quantum flowing from the breach of contract findings.

Alan Payne acted for the FCO, led by David Platt QC. The full text of the judgment can be found here.