This was the question which the Court of Appeal has recently considered in the case of Thomas Brown –v- London Borough of Richmond upon Thames (decision handed down on 26 October 2012).

Mr Brown had worked for the London Borough for 38 years until his retirement on grounds of ill health on 19th May 2004.  Mr Brown’s last working day was 30 June 2003 when he suffered a mental breakdown. The Employment Tribunal which originally heard the case found that his breakdown was associated with stress at work which the London Borough had negligently failed to address after becoming aware of this in late 2002.  As a result the Tribunal awarded Mr Brown a total of £35,615.03, which included £25,000 for general damages and £4,891.42 for loss of earnings up to 30 June 2004.  The reason for capping his loss of earnings to 30 June 2004 and not beyond was because the Tribunal considered that Mr Brown’s mental health problems after this date were not attributable to the London Borough’s breach of duty but were due to the breakdown of his marriage in August 2003 and that his marriage breakdown had broken the chain of causation.

Mr Brown appealed the Tribunal’s decision on a number of points, including that his loss of earnings should be capped to 30 June 2004.

The Court of Appeal has allowed his appeal against the cap on his loss of earnings.  The Court of Appeal found that the Tribunal judge did not appear to have adequately considered this issue, including the fact that the marital breakdown took place at a time when Mr Brown was vulnerable and suffering the effect of a work related breakdown.  It was also not obvious that Mr Brown would in any event have lost his job because of mental stress arising from his marriage breakdown notwithstanding the London Borough’s breach of duty.

As a result the Court of Appeal has remitted the case back to the Tribunal to reconsider the impact of the breakdown of Mr Brown’s marriage on his future loss of earnings. We must now await the Tribunal’s reconsideration of this.