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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Saunders v Chief Constable of Sussex [2012] EWCA Civ 1197 (12 July 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/1197.html Cite as: [2012] EWCA Civ 1197

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IN THE COURT OF APPEAL (CIVIL DIVISION )
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
EASTBOURNE DISTRICT REGISTRY
(MR N STRAUSS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th July 2012

Lord Justice Toulson:

1. Stephen Saunders appeals against the dismissal by Nicholas Strauss QC, sitting as a High Court judge, of a claim which he brought against the Sussex police for damages for psychiatric injury and financial loss resulting from a mental breakdown.
2. The judge found that there had been negligence on the part of the police force but held that the claim failed on causation. He gave Mr Saunders leave to appeal and the respondent cross-appeals against the findings of negligence.
3. At the relevant time Mr Saunders was a police constable. His case against the police force was that they failed properly to manage his return to work after a period when he had been off work suffering from post-traumatic stress disorder resulting from an arrest in November 2001. On that date he helped in the arrest of a violent shoplifter who was believed to be in possession of drugs. In the course of the arrest Mr Saunders suffered quite a serious injury to his right hand and wrist. As things turned out, the judge found that the long-term effects of that injury would have put an end to Mr Saunders' career in the police force in any event, but that was not certain at the time of the events giving rise to the claim.
4. The arrested man was found at the police station to be armed with a knife. Mr Saunders was told about this and was shown the knife. The effect on him was severe. Initially he was very shocked. Subsequently he developed depression and began to have vivid flashbacks. He was particularly conscious of his vulnerability in that he was not wearing a stab vest at the time and he had nightmares in which he felt himself to be in danger and unable to protect himself. For a long time, he kept his mental suffering to himself but he had periods off work because of his physical injuries and for other reasons. In 2003 he was off work from 3 January to the end of July. The recorded reason was that he had ongoing problems with his hand and wrist for which he underwent a further operation on 26 March 2003. During the same period his mental state was deteriorating and he was becoming increasingly depressed, anxious and isolated.
5. He first sought medical help for his psychiatric problems in May 2003. He saw his GP, Dr Davies, on 13 May 2003. In early June she referred him to Dr Angus, a consultant psychiatrist, who later became his expert witness at trial. About the same time Mr Saunders spoke about his problems to someone in the police welfare department, who sent a memorandum to Mrs Ann Coburn in the occupational health department. Mr Saunders also told Adrian Rutherford, his HR manager, and Dr Waters, then the force's acting medical adviser. Dr Waters in turn wrote to Dr Davies and Mr Rutherford.
6. Mrs Coburn arranged for Mr Saunders to see a psychologist, Dr Dodgson, who wrote a detailed report dated 14 July 2003. In it he recommended a planned return to work beginning on a half-time basis. With hindsight the recommendation was a mistake.
7. After Dr Dodgson provided that report Mr Saunders discussed the question of his return to work with Mrs Coburn. He wanted to get back but also to be sure that there were people around "not exactly to look after me but to know what is going on and help if I needed help".
8. Mrs Coburn assured him that his return would be planned and that she would speak to his inspector, Richard Shelton, to update him on his health and concerns.
9. Mr Saunders returned to work on Wednesday 30 July. During his time off work his section had moved to new premises at Sussex House, Hollingwood, Brighton with which he was not familiar. At the time of his return Inspector Shelton was on holiday. He briefed two officers on his section, Sergeant Moore and Sergeant Joseph, about Mr Saunders' return to work and his physical disabilities. It was agreed that Mr Saunders would start by updating his knowledge of recent directions, changes of policy and law and reading through his emails. Apart from that, he was to carry out general office duties until it could be seen precisely what duties he was able to perform. Inspector Shelton did not tell Sergeant Moore or Sergeant Joseph about Mr Saunders' psychiatric condition, which he regarded as confidential, nor did he inform Mr Saunders that he would be away on holiday. He left it to Sergeant Moore and Sergeant Joseph to conduct the customary return to work interview. As a result, nothing was said about his mental state on his return.
10. The judge found:

"The claimant was given a normal welcome, shown round the new premises such as they were and spoken to as often as was to be expected in a busy environment."

11. The fifth day of his return was Sunday 3 August. On that day his section was on night work so he had to go on to a different shift with another section. The senior officer was Inspector Whitehead, who had spoken briefly to Mr Saunders on the previous day, but the conversation was of no great consequence and did not touch on Mr Saunders' mental health, about which Inspector Whitehead knew nothing.
12. Mr Saunders arrived for work at 3pm. His evidence was that he had no intention at the time he arrived at work of leaving or taking an overdose. However at around 4.30 pm he left the police station, drove to a layby and swallowed a number of diazepam and paracetamol tablets. He stopped himself from going further and got in touch with the police. The upshot was that he was admitted to hospital and was compulsorily detained in a mental hospital for two weeks under the Mental Health Act. He was later invalided from the police force and has not returned to gainful employment.
13. Mr Saunders' case in summary was that the police force were negligent in failing properly to manage his return to work contrary to the assurances which he had received from Mrs Coburn and in failing to ensure that there was an officer on his section familiar with his mental health problems, who would be mindful of his needs and available to help. If the police force had not been negligent, he claimed that it would have been immediately apparent that he was not fit to return to work and his breakdown would have been averted.
14. The judge found that Mrs Coburn was negligent either in failing properly to liaise with Inspector Shelton about Mr Saunders' return to work or, if she was unable to do so because Inspector Shelton was away, in failing to discuss the matter with Mr Saunders and possibly postpone his return. Mrs Coburn had sadly died by the time the case came to trial. He also found that Inspector Shelton was negligent in allowing Mr Saunders to return to work without a superior officer in his section being aware of his condition. He concluded at paragraph 85:

"I therefore conclude that the Sussex police were negligent in allowing the claimant to return to work without anyone in his section being aware of his mental condition. I also consider that the return to work interview should have been conducted by Inspector Shelton or Sergeant  Moore depending on what the claimant decided. Its purpose was to ensure that the officer was fit to return to work, and the person conducting the interview needed to know the relevant facts."

The judge further found that it was foreseeable that such negligence might result in Mr Saunders suffering an exacerbation of his mental state.

15. The judge heard the case on 12-16 and on 19 December 2011. In February 2012 he circulated to the parties a draft judgment. Before judgment was handed down Mr Saunders submitted a written application for permission to appeal. On reading it, the judge entertained doubt whether he had reached the right result on causation or given sufficient reasons. He subsequently sent to the parties an amended draft, which he handed down on 16 March 2012. The approved version was significantly longer than the draft version on the issue of causation. The judge granted permission to appeal for two reasons. One was so that this court could consider the propriety of his conduct in amending the judgment before delivery to the extent that he did. The other was that he had reached his final conclusion with difficulty and considered that an appellate court might take a different view.
16. The ultimate conclusion reached by the judge in his draft judgment and in the approved judgment was the same. The judge explained his reasons for making the alterations in a written decision on the application for permission to appeal.
17. On the same day that the judge set out the revised judgment to the parties 7 March 2012, this court handed down judgment in Mercedes Travis Brewer v Mann [2012] EWCA Civ 246. In paragraph 31 Rix LJ, giving the judgment of the court, expressed what he described as a provisional view that:

"where a judge has received no request from the parties to reconsider his judgment or add to his reasons, and has not demonstrated the need in conscience to revisit his judgment, but on the contrary has received grounds of appeal and an application for permission to appeal on the basis of the alleged inadequacies of his judgment, then it would be most unwise for him to rewrite his judgment (other than purely editorially) and it would take the most extraordinary reasons, if any, to justify such a course on his part. It is also plain to us that this was not the case of a short judgment on a straightforward issue where an appeal might be avoided if the judge supplied further reasoning which had been requested of him."

18. With that provisional statement I would provisionally agree, but in this case the judge has indicated that he did feel a need in conscience to revisit his draft judgment and he set out his reasons for doing so with clarity and transparency. As I shall explain, the judge's concern related not to Mr Saunders' principal case on causation, but to a narrower point concerning his final day at work, which the judge did not think that he had properly considered in his judgment as originally drafted.
19. The claimant was a litigant in person, and the point which caused the judge to rethink had not been the main point in the case. If on reflection the judge had come to the conclusion in his own mind that there was a point within the claimant's case on which, for whatever reason, he had not focussed sufficiently in his draft judgment and on which he thought that arguably the claimant might succeed, it was right for him to consider it. If he concluded that the claimant ought to succeed on that narrow point, it would then have been his judicial duty so to find, consistently with his judicial oath, rather than leaving Mr Saunders having to appeal from a judgment which the judge did not believe to be correct at the time of handing it down.
20. When the judge concluded after wrestling with the point that it was not a good one, it was proper for him to explain his reasons for the benefit of Mr Saunders and this court. In those circumstances I can see no impropriety in the judge's conduct in the particular circumstances of this case. In any event the point leads nowhere as a ground of appeal.
21. Mr Saunders' primary case was that he realised immediately on his return to work that he was in such a state that he was not up to it. However, because he did not have a proper return to work interview with someone familiar with his mental state and had no available "informed contact point" within his section, he carried on to the point of suffering a complete mental collapse. Had it not been for the negligence of the police, it was his case that he would have left work immediately on his return. He would not have suffered a breakdown and he would have been able after further treatment to return to gainful employment.
22. The judge rejected that case, and in this respect there was no difference between his draft judgment and his judgment as handed down. The references which follow are to the approved judgment. He said:

"91 ...The claimant's case is that he was waiting to see Inspector Shelton, and that if he had been there, he would have left work after a quiet word, with no trauma. The breakdown would not have occurred, and he would have been able, after further treatment, to return to work with the police or elsewhere. I am sure that he genuinely believes this but I think it unlikely."

23. The judge set out his reasons at paragraphs 95 to 102. In summary Mr Saunders could have spoken on any day to his GP or to Mrs Coburn or could have tried to contact Inspector Shelton. The judge said at 98:

"In my view, the reason why the claimant did not go to see either his GP or Mrs Coburn on any of these days, or try to contact Inspector Shelton, is that he was -- creditably and courageously -- determined to stick it out and succeed, and thought that he could. For that reason, it is unlikely that he would have spoken to Inspector Shelton, even if he had been at Sussex House, or to Sergeant  Moore if he had been substituted for Inspector Shelton. To have explained his state of mind to either would have meant the immediate failure of the return to work. "

24. The question which caused the judge to rethink was whether the outcome would have been different if, at the time when Mr Saunders reached breaking point on the fifth day, there had been an officer present with knowledge of his problems in whom Mr Saunders could have confided. The judge had already found, on Mr Saunders' evidence, that when he arrived at work that day he was not anticipating that he would be unable to cope.
25. In the judgment as handed down the judge found that Mr Saunders would not have mentioned that he had any problems "at least until the last moment". As to what might have happened at the last moment, the judge said:

"103. That does however leave the consideration what might have happened on Sunday 3 August just before the claimant had to give up. I do think that if Sergeant  Moore or Inspector Shelton had been at Sussex House at that time and had known of his condition the claimant might well have spoken to him and that if he had done so this would have avoided the breakdown."

26. By "avoiding the breakdown" the judge must have meant avoiding an act of attempted suicide rather than avoiding the state of mind which had led him to a suicidal ideation.
27. In his reasons for giving permission to appeal the judge explained that when he used the words "might well" in his finding that Mr Saunders might well have spoken to Inspector Shelton or Sergeant  Moore just before he had to give up, he meant "slightly more likely than not".
28. So his finding was that if Inspector Shelton or a properly informed Sergeant Moore had been at Sussex House at the moment when Mr Saunders was about to leave the building in the middle of his shift, Mr Saunders would, on the balance of probability, have spoken to him. However, the judge went on to say that the arrangement made between Mr Saunders and Mrs Coburn did not require an informed point of contact to be available at all times. He also found that there was no probability that if Inspector Shelton had not been on holiday he would have been physically present on that Sunday afternoon, or that, if his briefing with Sergeant  Moore had included Mr Saunders' past history, Sergeant  Moore would have been immediately available. In fact he was not. As to the consequences of the negligence of the police in failing to arrange for a properly conducted return to work interview, the judge found:

"100. As the claimant has submitted, it is also necessary to consider what Sergeant  Moore or Inspector Shelton might have done proactively if properly informed. It is impossible to be sure, but I do not think that it would have made any difference. Either would have started on the basis of Dr Dodgson's opinion that the claimant was fit, and it is probable that the claimant would, at the return to work interview, have presented himself as keen to work, and would have concealed his feeling that it was a mistake. No doubt, he would have been told with some emphasis to say if he had any problems, but for the reasons given above I do not think that he would have done so, at least until the last moment. It is in my view very unlikely that the claimant's realisation that the return to work was a mistake would have been apparent without his saying so."

29. Mr Saunders has set out his criticisms of the judgment in full and detailed written submissions. In his well-focussed and clear oral submissions he brought them together. In essence he has made four criticisms of the judgment:

(1) The judge was wrong to reject his primary case on causation, which was that, but for the negligence of the police force, his return to work would have been aborted at the outset or at an early stage.

(2) In rejecting that case the judge was influenced by a misunderstanding of Mr Saunders' evidence about what he knew or thought regarding Inspector Shelton's availability over the relevant period.

(3) The judge was wrong to find that there was not causative negligence on the final day. There should have been somebody in Inspector Whitehead's section, probably Inspector Whitehead, who was properly briefed and to whom Mr Saunders could have turned.

(4) Looking at the matter more broadly, on the facts of this case the police force owed Mr Saunders a duty to provide a support system because of his mental fragility. The support system was not provided and his mental health suffered in its absence. Those facts should have resulted in a finding of liability.

30. I will take points (1) and (2) together, starting with point (2). The issue arose in the context of the judge asking himself, as Mr Saunders had himself been asked in some detail in cross-examination, why he had not tried to contact Mrs Coburn, his GP or Inspector Shelton during the days beginning with his return to work. As to Inspector Shelton the judge said in paragraph 50:

"In his oral evidence, the claimant said that he had felt really uncomfortable. He had kept looking round for Inspector Shelton, but had not asked where he was. He did not know that he was on holiday and thought that he was around."

31. Mr Saunders submits that this was directly contrary to his oral evidence. We have been referred to the transcript of his evidence on day 2, in which he was asked a number of questions in this area. The relevant passage began as follows in Mr Bishop's cross examination:

"Q. So the first day back, you knew it was a mistake?

A. Yes.

Q. But you just tried to struggle on. You did not contact anybody about how you were feeling?

A. The first day, I knew it was a mistake. The first day it wasn't -- you know, I thought I can stick this out until my Inspector comes back and we will have a chat and we can discuss what can be done.

Q. Did you try to find out when your Inspector would be back?

A. I don't think the conversation even arose. I certainly wasn't aware until later on that he had gone on two weeks holiday. I know I was under the impression that he would be back. I mean …

Q. Why did not the conversation arise? Because you have told us you were very worried, you thought it was a mistake, you wanted to talk to somebody -- your Inspector wasn't there. Do you not think that it would have been open to you to at least ask when he would be back?

A. If I'd had an opportunity to sit down and have a proper conversation with Sergeants, in a proper room, not in front of everybody, then I am sure the conversation would have taken place but that wasn't the environment I was put in. They were rushed off their feet. There was one acting Sergeant and one Sergeant. There was no other supervision there, there was no Inspector there. They were short staffed, and I'd just come back. I wasn't in a position when they were running around to say to them "Look, where is the Inspector?" ...

HHJ Strauss: How did you know he was not back? A. Well, because he wasn't -- I say he wasn't back. He just wasn't around. I mean you know, an Inspector, when you go back to the shift or you go on a shift, the Inspector, it used to be at Brighton, he had his own office, but it's a glass office, so you can if he is sitting there. When I went to the briefing, he wasn't at the briefing, and then he was not there the whole day. So, I say wait until he gets back, but I am still waiting for him to turn up so I can actually see him. ...

Mr Bishop: Did you think about sending an email to Ann Coburn or somebody in the human resources department saying, "Hold on a minute, my Inspector is supposed to be here and he doesn't seem to be here -- can anyone tell me where he is?'.

A. No it just didn't … [I omit some words]

Q. It did not occur to you?

A. No, it's a case of, the arrangement was, I go back, "Your point of contact is your inspector and if you need anything or whatever, you speak to him." And that was what I did. It didn't -- it wasn't a case of trying to go around him or over his head or whatever, to speak to anybody else. I was waiting for him to come back. ...I didn't know. If I had known he was away for two weeks, then perhaps I would have done something differently, but I didn't know he was away for two weeks. That is just the environment. I was waiting for him. I anticipated him being there."

32. Mr Saunders draws the court's attention, in particular, to his statement in that passage in answer to the judge that Inspector Shelton wasn't around, and he contrasts that with the judge's finding in paragraph 50 that he believed that Inspector Shelton was around.
33. When the judge said that Mr Saunders did not know that he was on holiday and "thought that he was around", he clearly cannot have understood Mr Saunders to be saying that he believed him to be around in the building. He must, it seems to me, have meant that he was around in the sense that Mr Saunders was expecting him to turn up any day, but Inspector Shelton did not do so.
34. The criticism of the way in which the judge expressed himself in that paragraph of the judgment is valid, but the question is where it leads. The questioning followed up by the judge was why, in view of Inspector Shelton's expected appearance but actual non-appearance, Mr Saunders did not ask questions of anybody else including Ann Coburn. The summary of Mr Saunders' position, as explained in his evidence and as recapitulated in his submissions today, are that he was essentially a man under orders who was not given to questioning authority. He was told that Inspector Shelton would be dealing with him as the line manager and so he waited patiently for Inspector Shelton to return, which he never did.
35. The judge in his ruling on the application for permission to appeal said this:

"Even if the claimant did not believe Inspector Shelton was around, he certainly believed that Inspector Shelton was his informed point of contact and he did not know that he had gone on holiday for 2 weeks, but he made no attempt to contact him by telephone and did not inquire when he would be at Sussex House."

36. That is not in my view a retrospective attempt by the judge to reinterpret his thinking process in his judgment. When one reads the judgment as a whole it is plain that he was exercised by the question why, in the absence of Inspector Shelton, Mr Saunders had not spoken either to his GP or to Ann Coburn or anybody else. On that he had received Mr Saunders' answers. The point was fully explored in evidence. The judge reached the conclusion that, although the claimant undoubtedly believed that he would have revealed to Inspector Shelton that he was not feeling up to it, it was more probable, to the judge's mind, that in truth at that stage Mr Saunders believed that he would be able to return to work satisfactorily and did not want to ruin his chances of doing so. Was the judge wrong?
37. Mr Saunders has been realistic in his submissions. He is plainly convinced in his own mind that he would have told Inspector Shelton how he was feeling and he is frustrated that the judge did not accept his evidence on this point. However, the judge was not persuaded and Mr Saunders recognises that it is not something which he could scientifically prove. This court is a court of review. It does not re-hear the case. In my view it is impossible for this court to say that the judge was wrong in the conclusion which he reached. He considered the matter carefully and he gave credible reasons for his conclusion. The same applies to the judge's finding about what would or would not have probably happened if there had been a return to work interview conducted by an officer who was aware of his mental health problems. I have already set out the judge's findings on that point.
38. That brings me to the third point, the criticism that the judge was wrong to find that the police force were under no obligation to ensure that there was somebody available for him to turn to at the last moment before he left the police station and began to swallow pills.
39. The judge set out his findings about this in two paragraphs. He said:

"87. In the present case it would be reasonable to require the Sussex police to have ensured that Inspector Shelton (or a substitute) was aware of the claimant's psychiatric illness, and for that person to have conducted the return to work interview and thereafter to have been reasonably available if needed. That would involve being reasonably available to be contacted by telephone if not in physical proximity. But it would not require anything more, such as being always present in the same shift. That would be impractical from the point of view of police organisation. Nor would it be reasonable to require that a substitute be informed if the designated person was not there. That would have meant that several people would have had to know the facts, giving rise to a real risk that the claimant's condition would become common knowledge, and compromise his career. Nor would it be reasonable to require daily monitoring by the designated person, who could not always be there and would not have the necessary expertise anyhow. As is clear from the claimant's description of his state of mind set out above, he was in no condition to be in the police environment at all but the Sussex police could not have known this. They were entitled to assume, from Dr Dodgson's report, that he was fit to return to work, and capable, if he needed help, of saying so to his informed point of contact."

And at 103:

"As indicated earlier, the arrangement made with Mrs Coburn did not require an informed point of contact to be available at all times."

40. Mr Saunders has attacked the judge's reasoning on a number of points. He says that there would have been nothing impracticable in informing at least one other person about his condition and that the police force can organise itself in such a way that, even if the informed contact point was dealing with some other matter, and not capable of being interrupted, at least messages could be left. Therefore the judge both over-estimated the degree of disclosure which would have been needed and over-estimated the practical problems.
41. The judge's findings about what were required were based to a large extent on what he found to be Mr Saunders' expression of his own need in his conversation with Mrs Coburn, that is, that he needed people around not to look after him but to turn to for help if he needed help.
42. In my judgment the judge was entitled to find, as he did, that this did not require a wider circulation. There ought to have been an available contact point, but there was no probability that that available contact point would in fact have been there on the fatal Sunday afternoon unless one accepts Mr Saunders' argument that the police were under a duty of care to ensure that there was somebody present at all times, literally to whom he could turn. That was to overstate the duty the police on the judge's findings. Again, I am not persuaded that the judge fell into any legal error in the conclusion that he reached or that, on the factual evidence, his conclusion was untenable.
43. That leaves point (4), that the police owed a duty to Mr Saunders to protect his mental health in the light of the knowledge of his fragile mental state, that the protection system failed and that he in fact suffered a serious deterioration in his mental health during the period of his return to work. Are those facts in themselves sufficient to entitle the claimant to judgment? Mr Saunders has referred the court to the decision of this court in Vaile v LB Havering [2011] EWCA Civ 246, which Mr Bishop QC in the best traditions of the Bar has brought to the court's notice and shown to Mr Saunders because he believed that it was an authority which he would have wished to rely upon if he were acting for Mr Saunders. The facts of the case were very different, but Longmore LJ, giving the judgment of the court, cited an earlier judgment of mine in Drake v Harbour [2008] EWCA Civ 25 as authority for the following general proposition:

"...where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism."

44. Mr Saunders submits that that proposition is applicable on the facts of this case. I do not agree. The facts of Drake v Harbour were quite different. The significant relevant feature in this case is that the claimant's case on causation was dependent on him persuading the court that he himself would have acted differently if the defendants had not been negligent. The burden of proof lay on him to establish that point. The judge was not persuaded that Mr Saunders would have acted differently. Accordingly, his case on causation fails unless he is able successfully to challenge the judge's factual finding on any of the earlier grounds which I have considered.
45. In those circumstances it is unnecessary for this court to consider the issues relating to the foreseeability and negligence raised in the Respondent's Notice. My conclusion will come as a bitter disappointment to Mr Saunders, who has conducted himself, in this court as below, with great dignity. At the end of his judgment the judge paid tribute to the way in which he had conducted his case. I would echo those words. He has undoubtedly suffered serious illness, which he genuinely believes to be the responsibility of the defendant and, as I have already said, he is frustrated that the courts have not seen it in the same way. However, our duty is to examine independently and fairly whether we are persuaded that the judge has either misdirected himself in law or reached a conclusion of fact which was not properly open to him on due consideration of the relevant evidence.
46. For the reasons which I have given, I am not persuaded that such is the case, despite the powerful way in which Mr Saunders has presented his appeal. For those reasons I would dismiss the appeal.

Lord Justice Longmore:

47. Mr Saunders submits that the judge's decision that, although his employers were negligent in allowing him to return to work without anyone in his section on the fifth day after his return being aware of his mental condition when he collapsed, that negligence did not cause him to suffer loss because he would not have consulted any such informed point of contact until the very last moment, when no such informed point of contact was in any event present and on the judge's finding did not need to be, was a very harsh decision. How, Mr Saunders asks, can he prove he would have consulted an informed point of contact if there was in fact no informed point of contact available to consult? Nevertheless, under our law, for a claimant to succeed he does have to prove not only negligence but also that the negligence which he proves caused the loss of which he complains. That is a question of fact for the judge who saw and heard all the witnesses. He concluded and gave reasons for his conclusion that, even if an informed point of contact had been available, Mr Saunders' breakdown would have occurred in any event.
48. It is in my view impossible for the court to interfere with that finding of fact and despite Mr Saunders' excellent argument I agree that this appeal must be dismissed.

Lord Justice Maurice Kay:

49. I also agree with both judgments and I associate myself expressly with the comments made by Toulson LJ in the final moments of his judgment. Accordingly this appeal is dismissed.