Saunders v Chief Constable of Sussex

Proof of negligence and foreseeable psychiatric deterioration does not establish causation where the causal link depends on showing that the claimant would have acted differently without the breach. The claimant must prove that counterfactual on the balance of probabilities. The Court of Appeal is a court of review and will not interfere with factual findings properly open to the trial judge on the evidence and supported by adequate reasons. A return-to-work support duty may require an informed manager to conduct the interview and remain reasonably contactable, but does not necessarily require continuous physical presence, wider disclosure of medical information, or daily monitoring. Before handing down judgment, a judge may revisit a draft where conscience requires consideration of an insufficiently addressed issue.

A police constable claimed damages for psychiatric injury and financial loss after suffering a mental breakdown following a negligently managed return to work. The High Court found negligence in failing to ensure that an informed superior conducted the return-to-work process and was reasonably available, but held that the negligence did not cause the loss. The claimant appealed on causation, factual findings, the scope of the support duty, and the judge’s amendment of his draft judgment before hand-down. The respondent cross-appealed against the negligence findings. The central issues were whether the factual findings could be disturbed and whether the police were required to provide a continuously available informed contact.

1. Appeal dismissed. The respondent’s issues concerning foreseeability and negligence were unnecessary to determine because causation was not established.
2. The judge was entitled to revisit his draft judgment before hand-down. The Court provisionally agreed with the caution expressed in Mercedes Travis Brewer v Mann [2012] EWCA Civ 246, but the judge had felt a need in conscience to reconsider a narrow issue that had not been properly addressed. The claimant was a litigant in person, and the judge explained the revised reasoning transparently. There was no impropriety.
3. The Court of Appeal is a court of review, not a court rehearing the case. It could not interfere with the judge’s findings that the claimant would probably not have disclosed his condition at the outset of his return to work, or that an informed interview would probably not have prevented the breakdown. Those findings were carefully considered and supported by credible reasons.
4. The scope of the police’s duty was fact-sensitive. It required an informed superior to conduct the return-to-work interview and to be reasonably available, including by telephone. It did not require an informed officer to be physically present on every shift, several substitutes to be told of the claimant’s condition, or daily monitoring. The judge was entitled to conclude that a wider duty would overstate the obligation and create impractical organisational and confidentiality problems.
5. The claimant had to prove both negligence and causation. The general causation proposition cited from Drake v Harbour [2008] EWCA Civ 25, and referred to in Vaile v LB Havering [2011] EWCA Civ 246, did not assist where causation depended on proving that the claimant himself would have acted differently. The claimant failed to establish that counterfactual on the balance of probabilities.

1. Court of Appeal (Civil Division): Appeal dismissed under [2012] EWCA Civ 1197. The Court found no legal error, no impermissible factual finding, and no impropriety in the revision of the draft judgment.
2. High Court of Justice, Queen’s Bench Division: The claim was dismissed. Negligence was found, but causation was not established. Permission to appeal was granted.