LORD JUSTICE NEUBERGER: This is a renewed application for permission to appeal from a decision of Goldring J, who awarded damages to the claimant, Tracy Daw, against her former employer, the defendant, Intel Corporation UK Ltd, for psychiatric injury caused to her as a result, albeit partly, of her overwork when working for the defendant, causing her to leave her employment with the defendant. Unfortunately, her psychiatric problem of depression deteriorated after. The judge found that the psychiatric injury was foreseeable before it happened, and could well have been avoided if immediate action had been taken, as it should have, and awarded substantial damages. Five proposed heads of appeal are raised.

The first is that psychiatric injury should not have been found to be foreseeable. The second ground is that the extent of the steps required of the defendant, essentially advising the claimant urgently to see a doctor and urgently reducing her workload, were excessive or unnecessary. Thirdly, that those steps would, or at least might well have prevented the injury, was a finding the judge ought not to have made. Fourthly, that in light of the availability of confidential counselling and support, especially as the claimant had used those services in relation to her previous post natal depressions with some success, meant that nothing more was required of the defendant, in the light particularly of the guidance given in paragraph 17 of the judgement of this court in Sutherland v Hatton [2002] EWCA Civ 76. Fifthly, there is an argument on quantum.

Initially it appeared to me, on reading the papers, that, in a very full and very careful judgment, referring properly to all the relevant authorities including the Sutherland case and indeed Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 06, the judge had properly directed himself in law and, on each of these five issues, had reached conclusions which he was entitled to reach. That indeed was the view expressed by Waller LJ when refusing permission to appeal in writing.

So far as the first ground of appeal is concerned, nothing I have heard from Mr Porter in his clear and helpful submissions has caused me to change my mind. In my view, particularly in the context – and as the judge rightly emphasised context was very important, see paragraph 169 of the judgment – the vital e-mail which is quoted largely at paragraph 131 of the judgment, in particular the crucial last sentence, entitled the judge to conclude that Mr Howell should have made enquiries of the claimant as to what she was talking about. If so, he would have discovered that she had suffered from depression before, albeit post-natal in cause rather than anything else, and that the symptoms she was suffering from were similar, and that should have put Mr Howell, and therefore the defendant, well on notice as to the fact that there was a real and, possibly, immediate risk of substantial psychiatric injury unless matters were seen to.

Similarly, it seems to me that, if the judge reached the right conclusion on what is the second ground of appeal, namely the extent of the steps required, then, despite Mr Porter’s submissions to the contrary I would see no prospect of a successful appeal on the third ground, namely that those steps would have prevented the injury. In that connection, it seems clear that there was evidence from Dr Walbridge that it would have been more likely than not to have ameliorated the condition and would have put off, prevented, or reduced the seriousness of, any psychiatric injury. Although the evidence on behalf of the defendant was a little more equivocal, it seems to me clear that the judge reached a conclusion on the basis of evidence which he was clearly entitled to reach. I would therefore refuse permission on the third ground.

The second and fourth grounds of appeal caused me more concern. There is a strong possibility that on any appeal this court would conclude that, particularly in light of the very careful way the judge considered all the evidence and the rather unusual facts of this case, he reached conclusions he was entitled to reach. But, contrary to my initial impression when I came into court, having heard from Mr Porter, I cannot say that there is no real prospect of success for the defendant on the second and fourth grounds.

The importance of the availability of counselling, as emphasised in paragraph 17 of the judgment in this court in Sutherland, and the fact that the claimant had used the counselling service before (successfully it appears), are important factors. Further, it may well be in paragraph 183 that the judge’s reasons for holding that the availability of counselling was insufficient may well not have the force he thought, on the reasonableness of the attitude the defendant would have been entitled to adopt to counselling, if it had thought about it in this connection. Given that the defendant provided counselling services, it seems to me to be a point which can fairly be made.

In addition, it can be said that if the claimant had gone to counselling, that might well have resulted in advising her to reduce her workload and/or to see a doctor, and/or that seeing a doctor on the advice of counselling may have resulted in the reducing of her workload; the importance of reducing her workload and of seeing a doctor are plain from what the judge says in paragraph 174 of his judgment.

In my view, those matters span the second and fourth grounds of appeal and they do provide the basis for an arguably successful appeal. It also may be right that a decision on this point would be of some general assistance to employers and employees in this sort of case, and indeed to employers in terms of the services they provide to their employees.

The fifth ground stands rather differently. It is concerned with quantum. In my view, there may be some force in the point that the judge’s approach to quantum was inconsistent with his conclusion that the claimant would, as I read it on the balance of probabilities, have suffered a recurrence of depression in October 2006, in paragraph 213. The judge, having fixed on that date, ought arguably to have regarded that as the cut-off date for future damages, particularly in light of the question and answer number 4 on the joint statement of the two experts at page 296 of our bundle. I am again far from saying that this is a point which should succeed, but I can see how an argument could be mounted on an appeal, albeit that the court may very well take the view that the judge’s conclusion on this issue was one that he had to arrive at on a general basis, using as it were a basket, as Wilson LJ put it, of factors and arriving at an overall figure which seemed to him to be the best figure in all the circumstances. It may very well be that an appellate court would, although putting it in more detail and more eloquently than this, conclude that that was a proper figure for the judge to arrive at and hold that there were no grounds for appeal.

Accordingly, as with grounds two and four, permission to appeal should be given on ground five. In those circumstances I would give permission to appeal on those three grounds, but not on grounds one and three.

LORD JUSTICE WILSON: I agree. In his oral submissions, Mr Porter made clear to us that he placed particular stress on ground four; and in my view the high point of his oral submissions was his reference to the final sentence in paragraph 17 of the Sutherland case in which Hale LJ, as she then was, said that an employer who had a confidential counselling system was unlikely to be held in breach of his duty of care towards his employees. In the forthcoming appeal the claimant may wish to argue that that sentence needs qualification or refinement or should be set in context. At all events, it seems to me that this appeal could become a useful vehicle for the consideration of paragraph 17.