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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Intel Incorporation (UK) Ltd v Daw [2007] EWCA Civ 70 (07 February 2007)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/70.html
Cite as: [2007] 2 All ER 126, [2007] EWCA Civ 70, [2007] ICR 1318, [2007] IRLR 355

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Neutral Citation Number: [2007] EWCA Civ 70
Case No: B3/2006/1302

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
SWINDON DISTRICT REGISTRY
MR JUSTICE GOLDRING
4SN02005

Royal Courts of Justice
Strand, London, WC2A 2LL
7th February 2007

B e f o r e :

LORD JUSTICE PILL
LORD JUSTICE WALL
and
LORD JUSTICE RICHARDS

____________________

Between:
INTEL INCORPORATION (UK) LIMITED
Appellants
- and -

TRACY ANN DAW
Respondent

____________________

(Transcript of the Handed Down Judgment of
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

MR MARTIN PORTER QC & MS N GOOLAMALI (instructed by Messrs Bevan Brittan LLP) for the Appellants
MR RODERICK MOORE (instructed by Messrs Lemon & Co) for the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Pill:

  1. This is an appeal by Intel Corporation (UK) Limited ("the appellants") against a judgment of Goldring J dated 23 May 2006. In a personal injury action, the judge awarded damages of 134,545.18, including interest, but gross of the sum of 19,780.30 deductible by the Compensation Recovery Unit, to Tracy Ann Daw ("the respondent"). The appellants appeal against liability and, if that appeal fails, against the award of damages for loss of future earnings.
  2. Facts

  3. The respondent was employed by the appellants. She commenced work with them, aged 19, in September 1988 as a Finance Assistant and by May 2000 had become a Mergers and Acquisitions Payroll Integration Analyst on a salary of about 33,000 a year. In June 2001, she suffered a breakdown and has not since worked. She suffers from chronic depression.
  4. The respondent alleged that the breakdown in her mental health was caused by the negligence of the appellants as employers. The judge held that in early March 2001, the appellants ought to have known that the demands made upon the respondent in her employment were in the circumstances totally unreasonable and that the risk of harm to her health was clear. He held that, had appropriate action been taken immediately, as it should have been, a significant breakdown would probably have been prevented. Action after March 2001 would not have affected the outcome.
  5. The appellants are a very large international company and frequently take over other companies. The respondent worked on the integration into the appellants' payroll of acquired employees. The judge accepted that payroll integration was an intricate and sensitive process. The payroll structures, including commissions, bonuses and stock options were complex. It is accepted that in late 2000 and early 2001 her workload was heavy. The work to be done peaked in early 2001 and thereafter declined.
  6. The judge found, and this is not in issue, that the respondent was "an able, committed and very conscientious employee". She was very capable and very well respected for the quality and quantity of her work. Her manager for much of the material time, Mr Simon Howell, rated her as outstanding. Her work was very important to her.
  7. As succinctly stated by the judge, there were two connected elements which led to the respondent's stress and breakdown. The first was that reporting lines in her job were confused and there was a problem of priorities between the demands made upon her by different managers. The second was that she was provided with insufficient assistance and had to work excessive hours to get the job done.
  8. The respondent had had two episodes of post-natal depression. Her children were born in October 1995 and March 1998. There was a reference in her medical records to depression and appraisals of her work on three occasions referred to mood swings.
  9. The first occasion of post-natal depression involved an absence from work of about four months and the second for a longer period, though less than a year. On the first occasion, the respondent had eight sessions of counselling with the appellants' counselling service and on the second occasion she was under community psychiatric care. The judge found that the respondent was always quite open about the fact that she suffered from post-natal depression. Mr Howell and his family were friends of the respondent and her family. In October 2000 they went on holiday together. The judge found that the respondent appeared to have recovered fully from the episodes of which Mr Howell was aware.
  10. Following a major management re-organisation, the respondent's reporting lines were blurred. She had, in effect, three managers. In addition to Mr Howell, Mr Per-Axel Warensjo became Employee Services Manager and Mr Charles Rainey was Employee Services Re-imbursements Manager. All wanted her to attend their staff meetings. In addition, two of them wanted one-to-one meetings and two of them wanted monthly status reports. She believed herself to be pulled in different directions. Another manager, Mr Michael Dickel, was based in Ireland and had to be updated. He returned in April 2001 and effectively became her manager. The judge found that neither Mr Warensjo nor Mr Dickel was aware of the episodes of post-natal depression.
  11. The judge described a series of events between September 2000 and March 2001. Many representations were made by the respondent about the amount of work she was required to do and the problems which arose in her work. The judge substantially accepted her evidence. The judge itemised what the respondent's counsel, Mr Moore, had described as "protests". There were at least fourteen of them. It is not necessary to set them out in detail; they related to excessive workload and to organisational problems, unclear management direction, perceived bureaucracy, the respondent's desire to be involved with finance, problems in her relationships with human resources ("HR") teams, concerns at promotion prospects and her relations with her closest colleague, MP. In one of them, the respondent said that she "felt a moral obligation towards the employees whose remuneration packages [she] was controlling".
  12. In early March 2001, Mr Howell found the respondent in tears at her desk. He asked her to write down what was bothering her and said that he would go through it with her. The respondent produced a document, which the judge regarded as important, and needs to be summarised.
  13. In a long email addressed to Mr Howell, the respondent described her problems at work in detail in a document which the judge found set out the position truthfully and was supported by contemporaneous documents. Much of the detail, which will have been understood by Mr Howell, need not be described. The respondent's summary was:
  14. "Unclear management direction PX [Mr Warensjo]
    HR project managers lack of understanding"
  15. Under heading "bureaucracy" the respondent described what happened when an integration was planned. Her conclusion was:
  16. "I cannot carry on with what I need to do, unless the sustaining payroll can take this one but we go back to step 1 again. One step forward, two steps back I cannot win!"
  17. Under the HR/ES [employee services], the respondent stated:
  18. "I do not want to be part of HR. When I took the job it was a Finance job which is what I want to be doing and where my skills lie."
  19. Under the heading HR/M&A [Mergers and Acquisitions] Project Teams, the respondent referred to the meetings HR wanted her to attend:
  20. "I cannot attend all of these meetings and get the work done! They don't seem to be able to understand this!"

    Having described the procedures followed, the respondent added:

    "They want me to update this as soon as the deal is announced (it feels like) and due to the workload, I cannot react as quickly as they want me to. Get more resource (I don't mean green badge here) and possibly they can get someone on it quicker! They also do not understand, that just because HR only have three deals on their plate, that I have a lot more than that on my plate!"

    The respondent added:

    "Why do I always feel complete demoralised when I work with any of the HR project teams. They know that I have an issue with resource as I have flagged this to them all. However, they do not seem to care. I always get the feeling that they are getting at me, particularly S. The HR project mngrs are agreeing to terms for employees that will impact ES, with no regard for whether we can actually support what they are agreeing to. I challenged this today, which S did not like! If I don't challenge this and point this out, PX will go mad as his organisation is impacted. If I speak up, S shouts. If I don't speak up PX shouts. I cannot win! This situation will not improve for me until PX sorts out the sustaining organisation, which will then enable the integrations to go ahead. If I cannot integrate the payroll, the situation is only going to worsen and I WON'T put up with any more."
  21. The respondent concluded:
  22. "I cannot sustain doing the level of work that I am currently doing. No-one is getting a particularly good service, I am not enjoying what I am doing, bureaucracy is stressing me out (evidenced by my violent mood swings bad sign been here before twice"), HR/PX are demoralising me and I want out".
  23. In her evidence, the respondent said that the reference to "been here twice before" was not to mood swings but to post-natal depression. She did not have to explain about post-natal depression because Mr Howell "already knew about her history regarding it".
  24. As appears from short notes written on the email, Mr Howell suggested three possible courses of action, first a green badge, that is part-time resource. The respondent's reaction was that it had been tried and come to nothing. The second suggestion was a cutback in hours but the respondent said that she could not reduce her tasks further and there were no further hours to cut. To cut hours would have had serious consequences for the employees of the acquired companies. The third possibility was a transfer out of the team.
  25. The respondent met Mr Warensjo on 19 March 2001. The judge accepted that he told her that a move at that stage would probably affect her career. He sought to dissuade her from moving.
  26. On 20 March 2001, Mr Dickel sent the respondent an email in which he stated that he intended to re-structure the group. Provision was to be made for a permanent post for M&A. A job was advertised and a suitable candidate applied. However the job was offered to her only towards the end of May 2001 and she resigned before ever taking it up.
  27. The respondent said that, following Mr Warensjo's warning and encouraged by Mr Dickel, she decided to stay in her job: "Another permanent full-time head was being added to M&A payroll, this would change everything".
  28. In an email to the two men dated 26 March 2001, the respondent stated:
  29. "I feel this is the right decision as I have felt the pain of this job over the past few months and now I want to get some pleasure out of seeing it in progress. Thanks for all your support".

    The respondent said: "This was like a lifeline they were throwing. Also, knowing my career could be affected by moving, I thought it best to stay in my role".

  30. That optimism was, as the judge found, short lived. In the event, the expected additional employee did not materialise. The respondent's health deteriorated. When she saw her doctor on 11 May 2001, she said that she could not take any more. The doctor reported:
  31. "Depressed again gradual [increase] in symptoms over [six months] due to [to] stress at work working 50-60 hours/week. Does not want time off work".
  32. On 6 June 2001, a temporary "contractor", a self-employed man, took on the work. On the following day, the respondent attended the appellants' Occupational Health Service and a week later she was signed off for three weeks by her general practitioner with depression. She left the office on 15 June and the next day, at home, she attempted suicide.
  33. On 6 April 2001, Mr Howell had signed his annual performance review upon the respondent for the year ending 31 March. The respondent was someone of the very highest calibre. Her "inter-personal skills" were described as "excellent". Mr Howell rated her as "outstanding". He also commented: "At present being managed by excessive hours".
  34. Submissions and Authority

  35. Mr Porter QC's submissions on behalf of the appellants have concentrated on two points. The window of opportunity, in relation to preventing a serious breakdown, closed in April 2001. He relies on the judge's finding (paragraph 32 below) that a reasonable employer would not have considered someone in the respondent's position at greater risk of stress related depression than the normal employee. It is to be read with his finding that the pre-March 2001 complaints would not have led the reasonable employer to foresee a real risk of injury to health. It followed from that finding of the judge that, in those circumstances, the employers were required to take immediate action following the representations made to Mr Howell in early March 2001. That, it is submitted, was to impose too high a burden on the appellants. It was unknown to the appellants at the material time that the window of opportunity was about to close. Procedures were, it is submitted, soon put in place.
  36. The second main submission is that the provision by the appellants for the use by their employees of a counselling service and medical assistance was a sufficient discharge of their duty of care. If the respondent had used the service, the seriousness and urgency of the situation would have become clear to the appellants. Human Resources could have brought home to the management what they should do.
  37. External confidential counselling and support were available. On an occasion in October 2000 the respondent had contacted an HR representative. The appellants could reasonably expect that the service would be used by an employee who felt the onset of symptoms of psychiatric illness as a result of work related stress. The judge was not entitled to find that the demands placed on the respondent were totally unreasonable or that the risk of harm was clear to the appellants.
  38. Guidance as to the approach the court should adopt to allegations of psychiatric illness caused by stress at work was provided in this court in Hatton v Sutherland [2002] EWCA Civ 76. Giving the judgment of the court, Hale LJ stated, at paragraph 43, with references in that paragraph to earlier paragraphs in the judgment deleted:
  39. "43 From the above discussion, the following practical propositions emerge.
    (1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do ... The ordinary principles of employer's liability apply ...
    (2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable : this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) ...
    (3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large ... An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability ...
    (4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health ...
    (5) Factors likely to be relevant in answering the threshold question include: (a) the nature and extent of the work done by the employee ... Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? (b) Signs from the employee of impending harm to health ... Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
    (6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching inquiries of the employee or seek permission to make further inquiries of his medical advisers
    (7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it ...
    (8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk ...
    (9) The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties ...
    (10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this ...
    (11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty ...
    (12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job ...
    (13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care
    (14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm ...
    (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment ...
    (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event "
  40. In an appeal against one of the cases considered in Hatton, namely Barber v Somerset County Council [2004] UKHL 13, Lord Walker of Guestingthorpe, with whom Lord Bingham of Cornhill, Lord Steyn and Lord Rodger of Earlsfield agreed, referred, at paragraph 63, to the relevant part of the judgment in Hatton "as a valuable contribution to the development of the law". However, Lord Walker stated that "every case will depend on its own facts" and cited with approval the statement of general principle about the nature of an employer's liability by Swanwick J in Stokes v Guest-Keen and Nettlefold (Bolts & Nuts) Limited [1968] 1WLR 1776 at 1783. In Barber's case, the House of Lords (Lord Scott of Foscote dissenting), restored the decision of the trial judge who, it was held, had been entitled to conclude that the employers were in continuing breach of their duty of care and that that caused the claimant's serious nervous breakdown.
  41. Mr Porter submits that consistency in the law is required and there should be close adherence to the principles set out in Hatton. It was ultimately for the respondent to decide whether to leave or carry on in the same employment. Further, Mr Porter relies on the proposition that an employer who does have in place a system of confidential help and counselling "is unlikely to be found in breach of duty."
  42. Findings of Judge

  43. Before expressing his conclusions, the judge commented on the relevance of the history of post-natal depression. He accepted that the appellants did not have knowledge suggesting that the respondent "was susceptible to work related depression". She was considered by everyone to be a "capable resilient employee". The judge accepted that a "a reasonable employee would not in the circumstances such as the present consider someone in Mrs Daw's position at greater risk of stress related depression than the normal employee". The judge also considered the relevance of the respondent's communications and complaints over the months. He concluded that, subject to events at the beginning of March 2001, these would not have led the reasonable employer to foresee a real risk of injury to health. They were increasing complaints by someone who appeared to be able to do the job.
  44. The judge found, at paragraph 90:
  45. "The real problem was that because of her excessive workload, the demands of those different people [her managers] added to her stress. It was difficult to decide whose demands should be given priority".

    The recruitment of a woman in December 2000 did not remedy the situation because the woman employed was unable to do the work, which included using a computer. The judge found that the appellants must have known how little help the woman was.

  46. The judge found, at paragraph 119, that the respondent made the shortage of resources clear to everyone involved. At the beginning of March 2001, she was still without the help that everyone appeared to have accepted she needed. Those findings are amply justified by the evidence, including documentary evidence, to which the judge referred in considerable detail.
  47. The judge set out a series of eight conclusions at paragraphs 169 to 176:
  48. "First, what happened between Mrs. Daw and SH must be considered in context. Before this meeting there had been continual complaints by Mrs. Daw of overwork and conflicting pressures upon her. It had been agreed she needed help. It had not been provided or adequately provided. It was plain and known she was working excessive hours, at least to some extent. The second ZBB could not reasonably lead to a reduction in workload. It was or should have been clear that for all the work there to be done, Mrs. Daw would in effect have to do the work of two people. Mrs. Daw was doing all the work required. It should have been clear that Mrs. Daw was working the sort of hours she states.
    Second, the immediate backcloth to this exercise was SH finding Mrs. Daw in tears. Although not for those who worked near her, for SH that was unusual. That is why he asked her to write down what the matter was.
    Third, Mrs. Daw in a long, detailed and truthful document set out what was wrong.
    Fourth, SH should have read that document with care. That included the last paragraph. If he did not understand what it meant, he should have asked. It does not seem to me the Court of Appeal in Hatton had a situation such as this in mind when it spoke of probing. It cannot amount to probing to ask the maker of a document which you have asked for and who is plainly upset and under considerable stress to explain what she means by its final paragraph.
    Fifth, had SH asked Mrs. Daw would have told him. He would then have known there was a connection between the way she was feeling and the way she felt at her postnatal depressions.
    Sixth, urgent action should have followed. SH appeared to accept as much. Mrs. Daw's workload should immediately have been reduced. She should have seen the doctor.
    Seventh, I have no doubt that a company with the resources of Intel could immediately have ameliorated the position as far as Mrs. Daw was concerned. When she finally suffered her breakdown in June 2001 it was able very speedily to ensure the work was done.
    Eighth, in such circumstances the longer term options suggested by SH were not sufficient."

    The judge also found that the transfer option was unattractive and that the respondent's optimism about the additional employee being in post was short- lived.

  49. As to counselling, the judge found that whether the counselling service provided will be enough to discharge an employer's duty depends on the facts of each case. The respondent could not reasonably be criticised for not using it.
  50. The judge found, at paragraph 183:
  51. "Whether in any given case the counselling service provided will be enough to discharge the reasonable employer's duty must depend on the facts of each case. Mrs. Daw sets out the limitations of the counselling service. She cannot reasonably be criticised for not using it. By the end of the conversation with SH in the beginning of March 2001 the defendant ought to have known that the demands upon her were in the circumstances totally unreasonable and that the risk of harm to Mrs. Daw's health was clear. A short term counselling service could not have done anything to ameliorate that risk or help Mrs. Daw cope with it. It could not reduce her workload. The most it could have done is advise her to see her doctor. It does not seem to me that on the facts of this case the service provided was a sufficient discharge of the defendant's duty."
  52. As to causation, the judge considered the evidence of the psychiatric witnesses, Dr Walbridge and Professor Fahy. Dr Walbridge's opinion was that there was a window of opportunity for the work stresses to have been addressed before the depression deteriorated to the point it did. Had action been taken by the appellants in early March, the respondent would not have suffered the severity of depression she did. Professor Fahy considered that to be only a "possibility".
  53. The judge preferred the evidence of Dr Walbridge:
  54. "189. Although very much a matter of overall impression, I prefer Dr. Walbridge's evidence in this regard. In short, I have concluded that urgent and appropriate action by the defendant after the conversation with SH would probably have had an effect in terms of the severity of Mrs Daw's depression. I shall expand on that when dealing with damages."

    Conclusions

  55. The respondent held an important administrative position in a very large organisation. She had worked for the appellants for many years. She was loyal and regarded by them as of the highest calibre, with a capacity for hard work. She wished to remain in her employment with them and had prospects of promotion.
  56. That is the essential background against which the respondent's claim must be considered. She was not likely readily to complain of the amount of work she was required to do, or to take time off, or to tackle her problems other than by consulting those who could do something about them. The stress from which she came to suffer was not caused by the volume of work alone. As carefully set out in her memorandum in early March 2001 to Mr Howell, a combination of factors led to the stress becoming intolerable.
  57. In my judgment, the judge was fully entitled to hold that it was a failure of management which created the stresses and led to the breakdown. The judge was entitled to hold that, by early March, injury to the respondent's health was reasonably foreseeable. The indications of impending harm to health were plain enough for the appellants to realise that immediate action was required.
  58. There will be cases in which an employee may be expected to take refuge in counselling services. The problems of this capable and loyal employee could, however, as the judge found, be dealt with only by management reducing her workload. The judge was entitled to find that, in the context of frequent complaints by the respondent of "overwork and conflicting pressures upon her", urgent action was required of the appellants immediately upon receipt of the early March 2001 memorandum. I find the judge's eight conclusions wholly convincing. On the medical evidence, the judge's finding that the appellants' failure "to take urgent and appropriate action" was causative of the severity of the depression which occurred is also sound.
  59. In these circumstances, the respondent was not required to give up her work. She was persuaded to stay in her then job on an assurance, which was not fulfilled, that assistance would be provided. The fact that the respondent did not give up her job when the stresses grew did not, in present circumstances, eliminate the duty of care owed to her. It is not a rule of law that an employee who does not resign when stresses at work are becoming excessive necessarily loses a right of action against her employer.
  60. A very considerable amount of helpful guidance is given in Hatton. That does not preclude or excuse the trial judge either from conducting a vigorous fact-finding exercise, as the trial judge in this case did, or deciding which parts of the guidance are relevant to the particular circumstances. The reference to counselling services in Hatton does not make such services a panacea by which employers can discharge their duty of care in all cases. The respondent, a loyal and capable employee, pointed out the serious management failings which were causing her stress and the failure to take action was that of management. The consequences of that failure are not avoided by the provision of counsellors who might have brought home to management that action was required. On the judge's findings, the managers knew it was required.
  61. I agree with the findings of the judge and would dismiss the appeal against liability.
  62. Quantum

  63. The element of the award of damages which is challenged is that for future loss of earnings. A figure of 16,000 has been assessed for general damages for pain, suffering and loss of amenity, allowance having been made for the possibility of mental illness without a breach of duty by the appellants. Special damages for loss of earnings to the date of trial were assessed on the basis of a total loss to that date, subject to a twenty-five percent discount for time off work for the depression the respondent would probably have suffered apart from the breach of duty, and the possibility of further severe depression during the five-year period which had elapsed. That approach and the figure calculated on the basis of it are not challenged. The other heads of damage are not challenged.
  64. What is challenged by the appellants is the award of any future loss. The judge found that by about 2006 there was a fifty percent chance that the respondent would have suffered a further episode of depression, stress at work apart. Mr Porter submits that, on the basis of that finding, no loss of earnings beyond that five year period should be awarded.
  65. The multiplier for a total future loss of earnings, as provided in the Tables, was agreed at 18.41. Stating that he had regard to the vulnerability of the respondent's personality, the judge found a multiplier of 6 to be appropriate. There is no dispute as to the multiplicand. That was based on a full continuing net loss of about 12,500 a year.
  66. The judge found that there are prospects of recovery from the illness caused by the breach of duty and the respondent may be able to return to work. He held that there should not be any discount from future loss on that ground, however, because the respondent was receiving an assumed sum of about 13,000 from the appellants' insurance scheme while absent from work and her earnings on a return are unlikely to be higher than the sum so received.
  67. The issue is therefore a narrow one, though substantial in terms of the sum awarded. The judge found that by about October 2006 there was a fifty percent chance that the respondent would have suffered "a further episode of depression, stress at work apart". He added:
  68. "Given Mrs Daw's vulnerability there is the risk that such a depression would be as severe and chronic as her present depression, although, as it seems to me, it is impossible to say. The time at which it was treated might (as here) be a factor".

    Later the judge found that a recurrence of depression "might have prevented her working some time or a very long time, possibly for ever at her previous level". [my emphasis]

  69. It is clear that the judge conducted an appropriate balancing exercise and considered that a multiplier of 6 was in the circumstances appropriate. Mr Porter submits that, on the evidence, the judge was not entitled to come to that conclusion. The evidence required a "cut-off" of loss of earnings in 2006".
  70. Mr Porter relies on evidence given by Dr Walbridge, whose evidence was accepted by the judge, when cross-examined:
  71. "Q: Perhaps we can agree that this level of vulnerability and complication with what is going on, all indicates, is all relevant to the percentage prospects that you are being (inaudible) to put on whether she would have suffered a similar depressive episode in any event?
    A: It all has a bearing on it doesn't it, but it must not be taken out of context. People who suffer with depression have in many cases, these background vulnerabilities. It is not an unusual situation. Mrs Daw, with all respect to her, is not a particularly unusual psychiatric patient. There are these interplaying factors present, but as there are in so many patients.
    Q: And all this is relevant to the views that you have expressed about her prospects of going through life without something else precipitating a similar episode?
    A: Exactly so, exactly so."
  72. Mr Porter submits that in accepting the expression "similar depressive episode" Dr Walbridge was accepting that there was likely to be a psychiatric illness as serious as the one the respondent has suffered as a result of the breach of duty.
  73. Mr Moore, for the respondent, submits that when using the word "similar", Dr Walbridge had in mind a similarity of kind rather than of degree. The oral evidence must be considered in the context of the written medical evidence including an agreed medical report. The expression "similar psychiatric illness" was used in a written question posed for the doctors, Dr Walbridge and Professor Fahy. In their written reply, they were not in agreement as to the extent of the risks but they were agreed that "the risk of further episodes of depressive illness was high". That is far from stating, submits Mr Moore, that the further "episodes" would be of the same intensity as the current illness, and Dr Walbridge's oral answer was given on that basis.
  74. In my judgment, the judge was entitled to reach the conclusion he did. The judge had to consider what would have happened had there been no illness caused by the breach of duty. There would have been "episodes" of psychiatric illness but their intensity was difficult to predict. They would not necessarily have been as disabling or as prolonged as the current illness caused by the breach of duty. The judge was entitled to conclude that there would probably have been periods of employment after 2006. He was not required to conclude that an episode or episodes would be as severe as that sustained in 2001. On that basis, the multiplier cannot be criticised.
  75. For the reasons given, I would dismiss this appeal.
  76. Lord Justice Wall:

  77. I have had the advantage of reading Pill LJ's judgment in draft. I am in complete agreement with it and do not wish to add anything.
  78. Lord Justice Richards:

  79. I also agree.


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