Daw v Intel Corporation (UK) Ltd.

At the permission stage, an appeal ground should proceed only where it has a real prospect of success. Permission may be granted where the proposed challenge is properly arguable, even though the ultimate appeal may fail. In workplace psychiatric-injury claims, the availability and previous use of confidential counselling may be important when assessing the employer’s response to signs of illness, including medical referral and workload reduction. The significance of counselling, and the scope of the guidance in Sutherland v Hatton, may require further consideration. A challenge to the assessment of future damages may also be arguable where the evidence identifies a possible future recurrence of depression and a corresponding cut-off date.

The claimant succeeded before Goldring J in a claim against her former employer for psychiatric injury attributed partly to overwork. The judge found that the injury was foreseeable, that urgent medical advice and a reduction in workload were required, and that those steps could have prevented or reduced the injury. He awarded substantial damages.

The defendant renewed its application for permission to appeal on five grounds concerning foreseeability, the required preventative steps, causation, the significance of confidential counselling, and quantum. The Court of Appeal considered the guidance in Sutherland v Hatton and the reference to Hartman v South Essex Mental Health and Community Care NHS Trust. The central issue was whether any of the proposed grounds had a real prospect of success.

Application granted in part. Permission to appeal was refused on grounds one and three, and granted on grounds two, four and five.

1. Permission threshold. The Court of Appeal applied the question whether the proposed ground had a real prospect of success. Ground one, challenging foreseeability, disclosed no such prospect. The trial judge was entitled to treat the context, particularly the material email, as requiring the manager to make further inquiries. Those inquiries could have revealed the claimant’s previous depression and similar symptoms, placing the employer on notice of a real and possibly immediate risk of substantial psychiatric injury.
2. Causation. Permission was refused on ground three. The trial judge’s finding that appropriate intervention would probably have ameliorated, postponed, prevented or reduced the seriousness of the psychiatric injury was supported by the evidence. The defendant’s more equivocal evidence did not make the finding incapable of support.
3. Counselling and preventative steps. Permission was granted on grounds two and four. The availability of confidential counselling, and the claimant’s previous successful use of that service, were important considerations. It was arguable that the trial judge had not given sufficient force to the reasonableness of an employer relying on counselling. Counselling might also have led to medical advice or a reduction in workload. The Court of Appeal identified the issue as a suitable vehicle for considering whether the guidance in paragraph 17 of Sutherland v Hatton required qualification, refinement or contextualisation.
4. Quantum. Permission was granted on ground five. It was arguable that the judge’s approach to future damages was inconsistent with his finding that a recurrence of depression would probably occur in October 2006, which might have provided a cut-off date. The appellate court might nevertheless regard the award as a permissible overall assessment based on a basket of factors.

The formal order was: application refused for grounds one and three; application granted for grounds two, four and five.

• Court of Appeal (Civil Division): On a renewed application, permission to appeal was granted on grounds two, four and five and refused on grounds one and three: [2006] EWCA Civ 1188.
• Queen’s Bench Division, Swindon District Registry: Goldring J awarded the claimant damages for psychiatric injury caused partly by overwork. No citation for that decision was stated in the judgment.