D v Intel Corporation (UK) Ltd [2006] EWHC 1097 (QB)

[2006] EWHC 1097 (QB)

Case No 4SN02005

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Date Tuesday 23 May 2006

SWINDON DISTRICT REGISTRY

Winchester Combined Court Centre

Before

THE HON. MR JUSTICE GOLDRING

Between

DClaimant

Intel Corporation (UK) LtdDefendant

Roderick Moore (instructed by Lemon & Co Solicitors) for Claimant

Martin Porter (instructed by Bevan Brittan Solicitors) for Defendant

Hearing Hearing dates: 27 April - 9 May 2006

Judgment

Goldring J:

Introduction

[1]Mrs. D was employed by the defendant. In June 2001 she suffered a breakdown. She now suffers from a longstanding and chronic depression. The fundamental issue on liability is whether that breakdown in her mental health and her depression were caused by the negligence of the defendant. Her primary case is that by the end of December 2000 or the beginning of January 2001 the defendant ought reasonably to have foreseen that there was a real risk of such a breakdown. It should have acted appropriately. Had it done so, she would probably not have suffered a breakdown. Her secondary case is that the defendant should have foreseen the real risk of such a breakdown at some point before it occurred in June 2001. Had it done so and acted appropriately at any time up to and including March 2001, a significant breakdown would probably have been prevented. Appropriate action at any time after March 2001 would not have affected the outcome.

[2]Mrs. D basically puts forward two connected elements as leading to stress and her breakdown. First, reporting lines in her job were confused. There was a problem of priorities between the demands made on her by different managers. Second, she was provided with insufficient assistance. She had to work excessive hours to get the job done. She alleges that her history of postnatal depression was relevant. It made her more vulnerable to a breakdown. Her managers at Intel knew of it. They should have taken it into account. That apart, the managers knew or ought to have known of the real risk of a breakdown given what she said and did in the period leading up to it.

The law

[3]The applicable principles were set out by the Court of Appeal in Hatton v Sutherland

[2002] 2 All ER 1

. They were recently considered by the Court in, among other cases, Hartman v South Essex Mental Health and Community Care NHS Trust

[2005] IRLR 293

[4]As Lord Justice Brown (as he then was) put it in Garrett v Camden London Borough Council

[2001] All ER (D) 202

at [63] “Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tensions of difficult relationships, career prospect worries…to take just some examples. Unless however there was a real risk of a breakdown which the claimant’s employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability.”

Mrs. D’s background

[5]Mrs. D is now 36, having been born in July 1969. In September 1988, when 19, she began to work for the defendant as a finance assistant. She became an able, committed and very conscientious employee. Mrs. Janice Bennell, a colleague, describes her as very capable and very well respected for the quality and quantity of her work output. Simon Howell (“SH”), her manager for much of the material time, rated her as outstanding. As to her personality, Mrs. Bennell says she was quite loud, very direct with a good and lively sense of humour. She was a woman on top of the detail of her work and capable of a reasonable workload. As Professor Fahy, the defence psychiatrist said, work was very important to her.

[6]Mrs. D says she had no real mental health problems until the first of two episodes of postnatal depression following the birth of her children in October 1995 and March 1998. There is some evidence to the contrary. In 1986, when 17, she had a termination. In 1991, according to what she told Dr. Lavelle, who saw her in July 2001 (following the breakdown), she took an overdose of Paracetamol. She had just told her boyfriend (now her husband) of the termination. She said to Dr. Lavelle that “she feels she had depression, which was not diagnosed or treated after the termination.” On 10 September 1992 Mrs. D saw her general practitioner, complaining of a three month history of headaches. The general practitioner also referred to depression. In her appraisals at work in 1993, 1994 and 1995 there is mention of mood swings.

The first postnatal depression

[7]Callum was born on 14 October 1995. Mrs. D returned to her job as inter company accountant on 15 January 1996. Between March 1996 and 8 July 1996 she was off work suffering from postnatal depression. She had eight sessions of counselling with the defendant’s counselling service, which she found helpful. She returned part time. Her appraisal for the period January 1996 to March 1997, dated April 1997, refers to her postnatal depression in terms of undergoing “a temporary crisis of confidence stimulated by Post Natal Depression.”

[8]Mrs. D says that her manager at the time (and for some time before), Per-Axel Warensjo (“PAW”) was aware of that depression. She says that her immediate supervisor at the time, someone called Craven, knew and told everyone. I accept PAW’s evidence that he did not know. He was not Mrs. D’s manager at the time of the appraisal in April 1997.

[9]Mrs. D said she made a complete recovery. It was understood by Intel that she had.

The second postnatal depression

[10]Megan, was born on 23 March 1998. Mrs. D received some counselling on one or two occasions for postnatal depression in July/August 1998 from the Intel counsellor. She returned to work part time as a senior finance analyst in September 1998. In October 1998 she again had to leave with postnatal depression. On 25 March 1999 her psychiatric nurse informed Ms. Townhill at the human resources department of the defendant that, “Mrs. D has requested that I write to you and confirm that she has been under Community Psychiatric care and treated for depression and anxiety since October 1998…she reports that she is well and…she has returned to work successfully…”

[11]Mrs. D said that she had that letter written in part to make sure the defendant knew the history. It confirmed she had been under psychiatric care. It was in the defendant’s records. It seems to me likely that in fact the letter was sent because the Human Resources Department needed something on file explaining Mrs. D’s absence, as the contemporaneous documents suggest.

[12]Mrs. D says it was generally known after the second post natal depression, that she had had it. In particular, she says SH, a manager who was responsible for her for much of the material time, knew. SH and his wife were friends of Mrs. D and her family. In October 2000 they went on holiday together. Laura Howell had suffered from postnatal depression. Mrs. D says that she believes at a bonfire night party in November 2000, she spoke to SH and Laura Howell about post-natal depression. SH disagrees. He says he did not know of Mrs. D’s history of postnatal depression. Mrs. D learned of his wife’s post-natal depression from a friend.

[13]Janice Bennell, who worked with Mrs. D, says that Mrs. D was always quite open about the fact she suffered post natal depression.

[14]Although for reasons which I shall explain later I do not accept everything Mrs. D has said, I have concluded she is probably right in this regard. I see no reason why in the context of this friendship and Laura Howell’s history, Mrs. D should have kept her similar history secret. It would not be surprising if it were discussed. The significance of that knowledge, given that these were depressions apparently entirely connected with the birth of children and that Mrs. D appeared to have recovered fully, is of course another matter.

[15]Mrs. D also says that in December 2000 PAW and another manager, Michael Dickel (“MD”), were told of the episodes of postnatal depression. I shall deal with that when I come to that part of the evidence. As will be apparent, I do not accept Mrs. D is right about this.

The return to work

[16]Although I heard a great deal of evidence about events following Mrs. D’s return to work and leading to her breakdown, much was in the event peripheral. I shall concentrate on the more important events.

[17]On 25 March 1999 Mrs. D returned to work as a senior accountant/finance analyst. It is clear that she and those at work who knew of her postnatal depression, such as a manager called Charles Rainey (“CR”), considered she had made a complete recovery. She was promoted to Grade 3. For financial reasons Mrs. D and her husband decided she should return to work full time. In April 2000 Mrs. D learned that the defendant had created a new position: Mergers and Acquisitions Payroll Integration Analyst (“M and A Analyst”). At the time the defendant was anticipating taking over other smaller companies. Any acquired company would have to have its payroll function adapted and integrated into the defendant’s. That was to be the M and A Analyst’s task. Mrs. D says, and I accept, that that “was an intricate and sensitive process.” It involved merging two complex payroll structures, including commissions, bonuses stock options and so on. It was sensitive because the remuneration of individuals was involved. Mrs. D says the position “seemed to play to a number of [her] strengths.” It was in the Finance Group of the defendant, where she felt comfortable and had experience. It involved interaction with people. It had a high degree of responsibility. It was a grade higher than her existing grade, namely Grade 6.

[18]Mrs. D was interviewed and offered the job. A starting date of 30 May 2000 was agreed. The hiring manager was CR.

[19]On 31 May 2000 SH sent out an announcement of Mrs. D’s appointment. It stated that “[she] will be a member of the Financial Employee Services group reporting to [CR]. However she will be taking direction from [SH] and the M and A team on a regular basis.”

Reporting lines

[20]From 30 May 2000 and through June 2000 Mrs. D’s immediate manager was CR. She had a “solid reporting line” to him. She also had to report to SH, who was Finance M and A Manager. She had a “dotted reporting line” to him. He managed her. SH had two assistant Finance Project Managers. “Even at this early stage there appeared to be some disagreement amongst the managers as to my priorities, each of them promoting his or her particular needs. There were also difficulties regards training, which, although scheduled, was not on the whole able to be delivered. The colleagues who were to train me were unable to spare the time…This was highlighted to [CR] but to little effect.”

[21]On 12 June 2000, CR, with input from other managers, prepared the initial training and integration plan. It was detailed. Many parts have been ticked. That, it seems to me, suggests they were carried out. Although Mrs. D is critical about the training she received, that seems to me peripheral.

[22]Mrs. D says she was never quite clear as to whom she had to go to for what.

The major management re-organisation

[23]In July 2000 there was a major management re-organisation. It was operative as from 2 October 2000. A new group, Employee Services, (“ES”) was formed. It was intended to combine all services for employees. That included payroll and re-imbursements. It meant Mrs. D had to move from the finance group. She says the re-organisation added a further layer of management. It blurred her reporting lines. PAW was to become Employee Services Manager. He was to be her manager. CR was to become Employee Services Re-imbursements Manager. SH, who remained in the finance group, had three Finance Project Managers. There was a Human Resources Mergers and Acquisitions Manager who had four project managers under him. Mrs. D says they all made demands on her.

[24]Mrs. D says she had in effect, three managers, SH, CR and PAW. All wanted her to attend their staff meetings. SH and CR wanted one to one meetings. SH and PAW wanted monthly status reports. SH and PAW each thought that she was included in their own head count. She says she was being pulled in different directions.

The monthly status report: 14 September 2000

[25]Mrs. D’s monthly report of 14 September 2000, under the heading “Issues,” stated, “Time, time and more time…Email-going mad! Takes far too much time.”

[26]Mrs. D says she was struggling with the workload. She had some 30 e-mails a day to deal with. Mr. Moore, on behalf of Mrs. D, submits this is the first of a series of repeated protests by Mrs. D of overwork and inability to cope. He submits that taken as a whole, those protests establish that the defendant should have foreseen a real risk to Mrs. D’s mental health.

The proposed change to Mrs. D’s job structure

[27]Once he took over ES, PAW proposed a change in Mrs. D’s manner of working. I should explain it.

[28]There were two elements to the acquisition integration process. The first was data integration. That was the job of a colleague of Mrs. D called Markus Pepper who was a data integration analyst. His manager was MD. Markus Pepper’s work was termed ‘front end’. The second element was the payroll and reimbursements. That was Mrs. D’s job. That was termed ‘the back end’. PAW’s proposal was to have one person doing both ends. Mrs. D did not agree with the proposed change. She thought there was a clear control issue. It would have been easy for the person entering the details to enter and have paid a false employee. The job too would be too wide. It would mean cross training for her and Markus Pepper. Finally, she says that it would do nothing to resolve a time/resource issue. There would still be just the two of them. It would be no more that ‘moving the deck chairs.’

The monthly status report: 13 October 2000

[29]On 13 October 2000 Mrs. D sent SH her monthly status report for October. She referred to the Employee Services Group. “New organisation headed by [PAW]…went “live” on 2 Oct. There are a number of changes, re-org, change of roles and responsibilities, reporting structure etc, a lot of which has still to be ironed out. Watch this space…”

[30]This is the second protest relied upon by Mr. Moore.

The series of e-mails of 18 and 19 October 2000

[31]MD was to be the ES manager. He was only in post in April 2001. On 14 October 2000, he sent Mrs. D and Markus Pepper draft job descriptions for the analysts for their comments. It was anticipated an extra person would be employed. In the event, that was someone called Kathryn Gilbert. On 18 October 2000 Mrs. D sent an e-mail to the project finance managers (copy to SH). Among other things, she said this:

“I have had a look at what is required to integrate the payroll and benefits for the companies based in the UK and have come up against resource constraints. … The payroll group are already under pressure from a resource standpoint … the group will struggle to absorb this workload. … it seems evident that resource will definitely be required for a period of 8 months in order to get these companies integrated and to clear the bottleneck. Going forward resource will be required to take this to sustaining. Questions I have … 3. If we are taking the payroll away from [the above 2 companies] who have someone in-house working on payroll, can we have the head count in the UK payroll department? 4. What do I need to do to get blue-badge resource [a permanent employee] that can take it through the project stage and on to sustaining? 5. If blue-badge is a no-no, then how do I go about getting contractor resource [green badge, a temporary employee]? …”

Questions I have …

[32]On 19 October 2000 SH responded. “This is great data and just what I need to address this resourcing issue. Perfect for the current environment and discussions.”

[33]On the same date, Mrs. D sent PAW the dates on which she proposed to have each company integrated into Intel’s payroll. PAW responded immediately. “I understand Intel wants to accelerate the integration of the newly acquired companies- which is a good thing for Intel. For us [ES] it means extra work and we have to make sure we get the resources to handle it… From now on when discussion about more or additional work from acquisitions comes up, the decisions has (sic) to go through me. I don’t know what we agreed in the past…but from now on ES is going to demand resources when taking on extra work. Markus [Pepper]/ [D] I need you to come up with a resource demand for ES in order to handle these acquisitions- yes I know we do part of it today but it doesn’t work properly (or other areas is (sic) suffering) and we have to put a stake in the ground and claim our fair share.”

Markus [Pepper]/ [D]

[34]This is the third protest relied upon by Mr. Moore. Put shortly, and in my words, Mrs. D says her problem was this. If Intel took the payroll from the acquired company, Intel would have to sustain it. That required resources. In her e-mails she is asking for a financial resource in Intel to enable Intel to administer the additional people added to its payroll. There was tension between SH in Financial Services and PAW in ES. SH wanted the payrolls integrated. He was pressing for that. PAW in ES did not want to accept an integrated payroll unless ES had the resources to administer it. If Mrs. D did seek to integrate and hand over the integrated payroll to ES, ES would not accept it until it was resourced. Until ES did accept it, Mrs. D would have the responsibility for the acquired company’s payroll. To make matters worse, there were not enough people dealing with M and A. Mrs. D needed help: preferably a permanent employee, if that were not possible, a temporary one.

[35]Although both SH and PAW do not accept Mrs. D’s analysis of the situation, it seems to me the e-mails substantially bear out what she is saying.

Mrs D’s e-mail to Mr. Schofield

[36]So too does an e-mail sent by Mrs. D to Mr. Schofield in Human Resources on the afternoon following the sequence of e-mails to which I have just referred. “I need someone who is neutral to talk to regarding… E S Organisation M and A Organisation Change of job responsibilities Reporting Politics Beaurocracy (sic)…” E S Organisation M and A Organisation Change of job responsibilities Reporting Politics Beaurocracy (sic)…”

Politics

[37]The meeting seems to have been on 20 October 2000. Mrs. D wrote some notes for it. From them her concerns are clear. There are three columns and headings:

“M and A, ES and Re-imbursements.”

First, she mentions one to one staff meetings involving SH, PAW and CR. She was obviously complaining of the need to attend three such meetings with three different managers. Second, referring to “Direction,” with reference to SH she says “Day-Day (focussed around M and A); with reference to PAW she says “focussed around ES.” That suggests both a difference of emphasis between SH and PAW and a degree of tension between their different concerns. Third, Mrs. D has written “Headcount” with reference to both managers. That suggests Mrs. D’s concern to have someone at Intel’s payroll department when dealing with the payroll of an acquired company, as set out in her first e-mail on 18 October 2000. Fourth, with reference to “Job Spec” she states that SH “disagrees with change/has asked for clarification of what benefits [PAW] sees” and that PAW “wants to change.” That is plainly a reference to the proposed change to her job specification regarding front and back end work.

[38]In short, taking into account this series of contemporaneous documents I accept Mrs. D’s account of these events.

The pressure not to recruit: Larry Walz’s e-mail: 23 October 2000

[39]Larry Walz, a senior manager at Intel and someone to whom PAW reported, promulgated an e-mail in the following terms:

“Intel’s expenses are growing faster than our revenue…Scott and I will be slowing [ES’] growth…This e-mail explains exactly what you need to do… …no more hiring without approval… No hiring means no externals or internals; this applies to replacement and new positions…This rule applies to all situations; if you think you have our approval to hire, you need to rejustify…first.”

[40]The consequence of Larry Wurz’s e-mail was that approval to hire a person had to be obtained higher up in Intel. An exception (to the rule) was required.

PAW’s e-mail: 25 October 2000

[41]On 25 October 2000 PAW sent an e-mail dealing with payroll issues to Markus Pepper. It is in similar terms to those before. Mrs. D was copied in. “You say there are issues with Geni [the payroll database]…before we take on a project like this we have to agree in before hand that we have a sustaining process in place and resources to handle. From now on we cannot just take on tasks unless we have the whole picture clear and agreed. For the future, I would like to be involved when we take steps like this. I have not agreed to absorb any payroll and we will not do so until we have resources in place.”

PAW’s monthly status report: 25 October 2000

[42]In his monthly status report for October, PAW said that, “Despite a lot of pressure on our 2 M and A analysts to work on several deals, they manage to as is analysis…We have to break our current Modus of Operandum which is to “just absorb every new acquisition” with no or very little process and resource analysis and then be surprised why data accuracy is a problem….we have to be realistic and make sure that when we bring them on we have processes in placed and are properly staffed.”

Mrs. D’s e-mail: late October 2000

[43]In late October 2000 Mrs. D sent the following e-mail to PAW and SH. “Based on the resource model that I put together to look at integrating the acquired companies in the UK into Intel…can you please have a discussion between you on whether I can pursue this. What I need to get from you both is…• Agreement from both of you that the timelines are okay or do you want these to be pushed out

• Understanding (for all of us) from the Ops Review on the directions from Bryant [Chief Financial Officer]/Taylor[a Vice President] on getting [the acquired companies] integrated

• Clear direction I will be on holiday for the next week, but would like to be able to move forward on this when I get back. In order for me to do anything further, I need agreement and direction.”

• Agreement from both of you that the timelines are okay or do you want these to be pushed out

• Understanding (for all of us) from the Ops Review on the directions from Bryant [Chief Financial Officer]/Taylor[a Vice President] on getting [the acquired companies] integrated

[44]This is the fourth protest relied upon by Mr. Moore. There is an issue about the final point. Mrs. D says she was there asking for clear management direction in general. Mr. Porter, on behalf of the defendant, submits that any objective consideration of the document shows that Mrs. D is plainly wrong about that. It is an example of the distorted perspective from which Mrs. D looks at documents (a view which I should infer similarly applies to her accounts of conversations).

[45]It seems to me there is some substance in Mr. Porter’s criticism in general. It is not a question of Mrs. D being untruthful, but a reflection of her feelings about the case and the defendant’s conduct. Perhaps not surprisingly Mrs. D does not look at the evidence objectively. That is something I must and do take into account throughout, both when considering the written evidence and Mrs. D’s accounts of what was said. That does not mean that Mrs. D is consistently wrong in what she says, as my earlier findings indicate.

[46]In this instance, I agree with Mr. Porter. It seems to me clear that when read as a whole, Mrs. D is asking for clear direction from PAW and SH to follow the course she suggests in the early part of the e-mail. What the e-mail does suggest is that without the agreement from both managers she cannot proceed.

The holiday with SH and his family

[47]In the e-mail last referred to Mrs. D speaks of going on holiday the following week. SH and his family were on that holiday. There is an issue as to whether Mrs. D and SH spoke about work on that holiday. Mrs. D says that she spoke to SH about getting harassed by PAW. SH did not agree, although his recollection was far from clear. Although peripheral, it seems to me Mrs. D may well have spoken to SH as she said. He was a friend. She was concerned about the situation. She was not someone afraid to speak her mind.

The first resource shortfall analysis: November 2000

[48]Mrs. D says that by the beginning of November she was “…really struggling and resource was a real issue in terms of the time available … to carry out the work expected of me. I was having to go home in the evenings and at weekends just to make up. [SH] was certainly aware that I was struggling and he called a meeting for the 8th November 2000 to discuss the team’s resource requirements. Shortly before this meeting on 1 November 2000 I had prepared for myself a list of things I had to do. At the request of [SH] I prepared for the purposes of this meeting a resource shortfall analysis. This summarised the work needed to be done over the next couple of months, the amount of time each task would take and the hours available in which to do the work.”

[49]Mrs. D said she was fighting against ill health at this time. She agreed she was not the only person at Intel to do a resource shortfall analysis.

[50]The resource shortfall analysis revealed (on the basis of an availability of 162.5 hours per month) that there were insufficient people to do the anticipated M and A work for October, November and December 2000 and for January and February 2001. The figures suggested that an additional person working for half the month was needed if all the work on the analysis was to be done. On the basis of 150 hours per month being available, the agreed appropriate basis of calculation, the shortfall was greater.

[51]In connection with the resource shortfall analysis, there was a process called zero-based budget (ZBB). Its purpose was to identify any of the tasks in the resource analysis that could be eliminated either by not doing the task or by giving it to someone else to do.

SH’s e-mail: 6 November 2000

[52]On 6 November 2000 SH sent an e-mail to PAW. “…we are looking at “catching up” on some of the old M and As and getting them integrated…All of this has an impact on the “sustaining resources” as we add more [headcount] onto the process. We need to sit down and agree this strategy and the impact to ES. (I know Tracey [D] has already performed a lot of analysis in this)…”

The meeting of 8 November 2000

[53]On 8 November 2000 Mrs. D had a meeting with SH. She produced the resource shortfall document. She says nothing was done to resolve the problem. There is a note that she would discuss the ZBB with PAW at their next one to one. Mr. Moore relies on this as his fifth protest.

Pressure not to recruit: 17 November 2000

[54]In a further e-mail Larry Walz spoke again of expenses growing faster than revenue and the need “to keep to our focus of slowing ES Ops growth”

Mrs. D’s meeting with PAW: 30 November 2000

[55]On 30 November 2000 Mrs. D had a one to one meeting with PAW. In her notes for the meeting she said, “…Reporting outcome of m[ee]t[in]g (has a m[ee]t[in]g been scheduled?)…• SPP online

• One stock shop.”

outcome of m[ee]t[in]g (has a m[ee]t[in]g been scheduled?)…

[56]Mrs. D says she told PAW about the resource shortfall analysis and the ZBB. She says the notes refer to what were workload issues. She spoke to PAW about them. She said she referred to “outcome of meeting” because, having spoken to SH, she thought SH and PAW were to meet to sort out the management direction; to avoid her being in the middle. PAW said no meeting had been scheduled.

[57]Given Mrs. D’s concerns, it seems me improbable that she did not raise them with PAW. As I have said, it is clear that in addition to being a very conscientious and hardworking employee, Mrs. D was straightforward in her dealings with people and not afraid to speak out about work issues.

[58]Mr. Moore relies upon this as his sixth protest.

CR speaking to PAW

[59]CR sat near Mrs. D. He said he could see that Mrs. D was overworked. He says he spoke to PAW about how he might obtain help for Mrs. D without increasing his “head count.” He says he suggested PAW ask for some money which could then be used to obtain temporary help. According to CR, having said he would deal with it in that way, PAW finally told him to forget it.

[60]PAW says he cannot remember such a conversation. He says it was in any event as difficult to obtain money as additional people. That seems to me to accord with common sense. I am not satisfied that CR is correct when he says he spoke to PAW about obtaining help for Mrs. D.

Mrs. D’s presentation regarding merging front and back end working

[61]Mrs. D says that in December 2000 she made a formal presentation as to why PAW’s proposal for one person to do both the front end and the back end work was not feasible. She spoke directly to MD and PAW. She says she told them both they were “really stressing me out with this big time. It was never going to happen, so why continue to press ahead…”

[62]It was to that presentation that Mrs. D says she was referring in an e-mail she sent to MD on May 15th 2001 (after she had seen her doctor on 11 May 2001 suffering from stress). In that e-mail she says, “You may or may not be aware, but I have been through this before (Post Natal), so knew the signs. You may also recall me telling yourself and [PAW] a good few months ago, that I was being pushed down that road again and that I was fighting against it!”

[63]Mrs. D says she received no reply to this email.

[64]Mr. Moore places a great deal of reliance on what Mrs. D says she said on this occasion. He submits it was a specific, albeit somewhat elliptical reference to depression. If read in context it forms a crucial plank in the claimant’s submission that a breakdown was foreseeable in December 2000.

[65]Although I have no doubt Mrs. D believes she did speak of ill health at the meeting in December 2000, I am satisfied she did not. She did not in particular speak of “being pushed down that road again.” Neither manager recalls it. If she had, it seems probable one of them would have. It is odd, as Mr. Porter submits, that the crucial part of the alleged conversation is omitted when she first deals with it in her witness statement. There is no subsequent reference to it until the 15 May 2001. An e-mail sent immediately afterwards to CR speaks in terms of having let MD know about the stress. What in my view probably happened was that Mrs. D told PAW and MD that the proposed change in her’s and Markus Pepper’s work practices was stressing her out. It comes to no more than that.

Monthly status report: December 2000

[66]In her monthly status report for December 2000, under the heading “Issues” Mrs. D said “…Maxed out- accepting no more [Actions Required] this year.”

[67]Mrs. D says she meant she was running way past her capacity. “By December 2000 (and in truth probably for some time prior to that) the overload was affecting my health. I was working in the evenings and at weekends and there still no let-up in the pressure. I had difficulty sleeping and would become tearful and fretful. Nothing substantive had arisen out of the resource shortfall meeting. Because of my prior experiences of post-natal depression, I was aware of signs of an impact on my mental and indeed physical health. On the other hand, I was very afraid of failure and the impact that would have both specifically in terms of seeking the grade 6 which I had been promised and generally in terms of my position and advancement within Intel. Also I felt a moral obligation towards the employees whose remuneration packages I was controlling. However when I distributed the December monthly status report on the 13th December I made my difficulties clear.”

[68]Mrs. D says she was then working 50 to 60 hours a week, probably nearer 50 at that point. She was losing her temper at home over silly little things. She was picking at her hands until they bled. She says that “[SH] was certainly aware that the work overload was affecting my health. Indeed, even if he had not been directly aware of it, he could not but have realised that such an overload was eventually bound to affect my health.”

[69]It seems to me that on an objective reading this monthly report says nothing about Mrs. D’s state of health. It goes no further than her saying she has a great deal to do and cannot take anything more until the end of the year.

Speaking in the canteen to SH

[70]Mrs. D also says she spoke to SH regularly about her health being affected. What that appeared to come to was this. When they had tea in the canteen she would explain about the management direction being unclear: that that was really stressing her out.

Kathryn Gilbert is taken on: 11 December 2000

[71]On 11 December 2000 Kathryn Gilbert was taken on. She was not a success. She suffered from repetitive strain injury. She could not therefore use a keyboard. Mrs. D says she was specifically recruited for the data integration side (Markus Pepper and the front end). She was not an additional resource for her. There is an issue about that. Although peripheral to the outcome of the case, it seems to me that the position was probably this. Kathryn Gilbert was taken on to help both Markus Pepper and Mrs. D. It was anticipated each of them would integrate both front and back ends. In fact, the re-organisation never came about. In practice, Kathryn Gilbert mostly helped Markus Pepper to the limited extent she could help anyone. Whatever the position, Kathryn Gilbert could not provide Mrs. D with the help she needed.

Grace Wicks

[72]She was a temporary employee. In about December 2000, it was “…arranged that [she] could come and help me for a few hours a day. She was employed in the Employee Service Centre…as a temporary employee…However due to the nature of what I was doing, the work I could give her was limited. I did give her some work, but she did not have the skill set…It’s like you need a bucket and someone gives you a paper bag.”

[73]There is reference to the sort of work Grace Wicks did in a series of e-mails in April 2001. In response to a query regarding the level 1 payroll and integration, Mrs. D stated that she would ask Grace Wicks “to work this with the agency.” Mrs. D says all that Grace Wicks had to do was print off a report from the personnel data base, send it to the agency in Glasgow and later file what the agency at Glasgow did. She said that she had to provide any expertise which was required.

[74]In June 2001 Mrs. D thanked Grace Wicks for all the help she had provided. Although Grace Wicks may have been somewhat more helpful than Mrs. D now recollects, it seems to me clear she could not provide the sort of assistance Mrs. D needed. Mrs. D, as will become plain, still had to work excessive hours. Further help was still needed. No doubt the situation was not helped by Kathryn Gilbert’s inability to use a computer.

Mrs. D’s meeting with SH: 20 December 2000

[75]On 20 December 2000 Mrs. D had a one to one meeting with SH, acting as her manager. The notes suggest they discussed her appraisal which SH was preparing. They suggest too that Mrs. D complained about the number of meetings she was having to attend, no doubt in the context of her workload. SH told her to stop attending two sets of meetings. The appraisal was signed in April 2001. It makes it clear Mrs. D was working excessive hours. It seems the excessive hours were discussed at this meeting.

[76]This is Mr. Moore’s eighth protest.

PAW’s year end summary: 26 December 2000

[77]Among other things, PAW said “M and A…Quiet on the deal…front although 4 in pipeline for Jan 2001! Kathryn Gilbert joined during the month which will enable us to meet [quarter] 1 challenges.”

[78]PAW’s optimism regarding Kathryn Gilbert was misplaced.

[79]Mrs. Bennell, who worked near to Mrs. D said that it was becoming “abundantly clear” to her that Mrs. D was under pressure with a huge and mounting workload.

[80]CR, a witness whom as I have implied, I did not find impressive, agreed. He said the previous episodes of post-natal depression heightened his awareness of the risks to Mrs. D’s health. He spoke of Mrs. D’s paranoia.

January 2001

[81]Mrs. D says, “By January 2001 I was being totally swamped with work. I was now working at home almost every night and every weekend… I did regularly leave work at a reasonable time, in order to see my children before they went to bed. When they were in bed about 7pm or 7.30pm, I would start working again – a fact that I never hid from anyone. In fact at one point [SH] actually commented to me about the time of night that I was sending e-mails. He was doing exactly the same – working at home and sending e-mails late at night … bearing in mind the volume of work which I was getting through, it was inconceivable that Intel could have imagined that I was doing that in normal working hours, bearing in mind the extreme resource shortfall which I had consistently brought to their attention.”

[82]She says she was working “up to about 60: 60 plus hours.” Intel must have known how little help Kathryn Gilbert was.

[83]Mrs. Bennell says that as time went on Mrs. D became so emotionally charged that she was not rational about it. She would explode when she received an e-mail. It seemed to her that such was the pressure of work and her reaction to it that her health might be affected, particularly in view of her history of postnatal depression. CR agrees with her.

[84]Mrs. D’s managers, in broad terms, say they did not witness such outbursts. They were not aware of them. I believe them.

[85]Mr. Porter submits Mrs. D exaggerates the hours she was working. SH said he believed Mrs. D was working about 10 hours a week at home. Only one of the e-mails in the bundle was sent late (in the early hours of the morning). Some help was provided to Mrs. D.

[86]I accept Mrs. D’s evidence that she was working the sort of hours she states. SH speaks of excessive hours in his appraisal. The first resource shortfall analysis suggested the need for assistance (assuming work was not jettisoned). Kathryn Gilbert was employed to provide it. She did not. The second resource shortfall analysis, to which I shall shortly come, underlined the problem. Little work could be jettisoned. The back end work continued nevertheless to be done by Mrs. D.

[87]I also accept that Intel knew how limited was the help Kathryn Gilbert could provide. PAW said that different ways of helping her were tried without success before it was decided to replace her.

[88]It may well not have been appreciated that Mrs. D was working as excessively long hours as she was.

[89]Mrs. D complains too of confused reporting lines at this time. PAW was her ultimate manager in ES. Because MD was in Ireland he was also ES Mergers and Acquisitions Acting Manager until March 2001. Until he returned, she had to update MD. She had too to report to SH, who in the 2000-2001 appraisal is referred to as manager. She was being given work by SH’s two project managers: also by five Human Resources Mergers and Acquisitions project managers. She says she was also reporting to Linda Torpey in Human Resources. Mrs. D says the practical effect was intolerable. It was very, very difficult to juggle everyone’s priorities, which she was trying to do.

[90]While there may have been some confusion in Mrs. D’s mind about formal reporting lines, it seems to me she knew the essential position. SH was effectively her manager until MD was in post in April 2001. He prepared her annual performance review. She had regular one to one meetings with him. PAW was in a more senior role. She had meetings with him. She consulted with MD from time to time. The real problem was that because of her excessive workload, the demands of those different people added to her stress. It was difficult to decide whose demands should be given priority.

Meeting with PAW: 25 January 2001

[91]On 25 January 2001 Mrs. D had a one to one meeting with PAW. “Where will the additional heads come from? Where do they report into in their current org? Then get [transfer] from that group into ES.” Where do they report into in their current org? Then get [transfer] from that group into ES.”

Where do they report into in their current org?

[92]Mr. Moore submits (as his ninth protest) that Mrs. D was there making it clear she was under pressure.

Meeting with SH: 29 January 2001

[68]Mrs. D had a one to one meeting with SH on 29 January 2001. The notes suggest there was reference to “resource” and “job responsibilities.” Mrs. D says that at this meeting she made it clear she could not cope with the amount of work which needed to be done. SH asked her to prepare a second resource shortfall analysis. I accept what Mrs. D says about this. A second resource shortfall analysis followed shortly afterwards.

[69]This is the eleventh protest, submits Mr. Moore.

A request for help to Markus Pepper

[93]In January 2001 Markus Pepper refused to help Mrs. D, although he appeared to be doing little work. He said he was busy. Mrs. D said she was really angry and told SH, which I accept.

CR’s evidence

[94]He says that by now it was apparent to him and anyone who took an interest that Mrs. D was breaking down because of the workload. On one occasion he took her out for tea to give her support. He expresses the view that the workload she had would have broken the most robust of individuals.

[95]I accept that probably CR, who sat very near Mrs. D, did realise she was under stress and working very hard.

Mrs. D’s second shortfall analysis: 4 February 2001

[96]Mrs. D says she spent the whole of one weekend preparing this second analysis. It was e-mailed by her to SH and, among others MD, at 0023 on Sunday 4 February 2001. As Mrs. D put it, “…there is a definite need for a resource, based on what is coming our way soon on top of this.”

[97]In evidence she rightly says this:

“After all possible ZBB deductions, the resource shortfall for January 2001 and going into the ensuing months was the equivalent of one full time employee.”

[98]On Monday 5 February 2001 Mrs. D saw SH. One of her notes reads “unsustainable!” She says SH wanted the position to be shown as unsustainable.

[99]After seeing Mrs. D SH sent an e-mail which speaks for itself. Among the recipients was MD. Under the heading “M & AP payroll ZBB” SH says, “…. I have worked on the detail behind this with D today, some good data prepared on the issues. I have asked D to pull the data together in a slightly different format that I think will provide a clearer and compelling need for more support … I will work this with this team and indeed probably escalate to [PAW] … There is a big gap and the train is about to come off the rails unless we are very careful.”

[100]Mrs. D says that the reference to the train “about to come off the rails” is a reference to her: that she was in danger of coming off the rails because of overwork: that if she did she would not be able to do the work needed. I do not agree. SH says the reference had nothing to do with Mrs. D and her health. It was a reference to the danger of the work not being done unless Mrs. D had help. It seems to me SH (whose e-mail of course this was), is right. This is a reference to the need for assistance for Mrs. D if all the work is to be done. It recognises that if Mrs. D does not have help, there will be serious consequences as far as M and A work is concerned. It suggests that Mrs. D’s second resource shortfall analysis sets out work which needs to be done.

[101]On 6 February 2001 PAW responded to the detailed resource shortfall analysis. He appears to contemplate that Mrs. D and Markus Pepper will each work both front and back ends with help from someone else. “With Markus [Pepper] starting to transition you will have 2 [full time employees]. If I read your spreadsheet correctly, there is then no issue.”

[102]SH did not agree. “Unfortunately not…is really just current state. As transition starts to the new roles and structures we are just shifting the workload around- this does not comprehend any of the …role…Markus today covers. Indeed the transition period will increase the strain due to the learning effect.”

[103]PAW responded next day. “This confuses me. We have hired a person [Katherine Gilbert] that will take over Markus [Gilbert’s front end] job and [he] will spend 100% doing the same job as D [back end]- the agreement we made in November. D’s data suggest[s] this is enough to cover current and future work load.”

[104]This does not appear to represent the proposed re-organisation. Neither does it recognise Katherine Gilbert’s inability to do the work.

[105]Mr. Moore relies upon these events as the twelfth protest.

[106]On 8 February 2001 SH e-mailed, PAW in response. “In the context of the transition plan to the new organization and way of working and … this really is just the “Pay roll – reimbursements” side to the equation … concern that unless we act then we will have a “Combined” issue in the org.”

[107]This underlines SH’s view of the importance of additional help to Mrs. D. Mrs. D says this. “The whole point about the M&A payroll resource issue was that it impacted upon my state of mind – how could it be otherwise when I was expected to be doing the work of two people. In fact SH directly knew that it was impacting on my mental health, that I was stressed beyond my capacity and could not sustain the workload being expected of me. He well knew of my history of post-natal depression.”

[108]Mrs. D was asked how SH knew of the impact on her mental health. “Because I had gone to him in January and said I needed extra help. I remember I came down with five [illnesses] all at once. I spoke to him about my health, because I would have had to explain about my five illnesses, why I was off sick. I had a couple of days off. I told him I couldn’t come in because I had tonsillitis, conjunctivitis, flu, I don’t remember the other two. How was he supposed to know there any connection between those illnesses and workload? I don’t know.”

PAW’s e-mail: 12 February 2000

[109]In his e-mail to SH, PAW said this. “We are in a “chicken and egg” situation here. If we don’t find resources we cannot integrate any more companies and we have to integrate companies to be able to take more on. …Ideally we need resources who can do both.” …Ideally we need resources who can do both.”

Mrs. D’s meeting with MD: 16 February 2001

[110]On 16 February 2001 Mrs. D had a one to one meeting with MD. She says she was keeping him updated. She says she believes she spoke about the shortage of resource. Her pre-meeting notes suggest she did. She did not speak to him about her mental health. She did not know him that well.

[111]Mr. Moore relies upon these events as the thirteenth protest.

Mrs. D’s presentation: 16 February 2001

[112]On 16 February Mrs. D made a presentation. Before it she made some notes. In them she said, “[Action Required!] Jo to get resource for DK/Level One (needed asap)”

[113]SH, PAW and MD took part in the presentation. Some parts of the documents speak for themselves.

[114]Under the heading “Problem Statement” Mrs. D says, “Integration plans impacting ES are made without clear buy-off and commitment from ES to take these activities (with appropriate resources)”

[115]Another page is headed, “Integration v Stand Alone.” Under “Stand Alone” is written, “M and A Resource required for a substantially longer period (bottleneck effect)…Slower response to new acquisitions (due to bottleneck)”

[116]Under the heading “Integration” is written, “Reduces/eliminates the bottleneck effect.”

[117]Other pages set out the implications for resource. Under the heading “Next Steps” is written, “…Clear bottleneck”

[118]These documents seem to me to bear out much of what Mrs. D says. They suggest, first, a problem with ES accepting acquired companies’ payrolls, second, a problem with the resources to do so and third, a resulting build up of work resulting in a bottleneck.

[119]Mrs. D says she made the shortage of resources clear to everyone who was there. I have no doubt she did. It was agreed to employ a temporary (“green badge”) employee for six months. Mrs. D drafted the job description. She had to organise and be present at the interview. That had to be fitted into her normal workload, which she says added to her stress. She had never done it before. The only suitable candidate turned the job down. Mrs. D was still left without the help that everyone appears to have accepted she needed.

[120]Mrs. D puts it in this way. “I was trapped in a no-win situation. No efforts were made by my managers to address the immediate problem and to move work away from me, for example to other people…”

[121]When Mr. Porter asked Mrs. D what the defendant could do in these circumstances, she said that someone could have been diverted to take some of her workload or a contractor could have been hired.

[122]Mr. Moore relies upon these events as the fourteenth protest.

[123]At what appears to have been about the end of February 2001 Kathryn Gilbert left. That opened up the availability of a permanent position.

The beginning of March 2001

[124]By the beginning of March 2001 Mrs. D says she was in a “complete mess.” When working at home she would just burst into tears at e-mails. She felt there was no understanding of what she doing or trying to do. At Intel it was “very obvious” that her health was suffering. “The fact I was trying to juggle the hours required of two employees meant that it would have been surprising if I had not shown signs of the stresses and strains.”

[126]Mrs. Bennell says that Mrs. D’s erratic behaviour and potential risk to her mental health became more marked from March or April. She expresses the view that she did not think her change in behaviour could have been missed by her managers. She was concerned that Mrs. D might be heading again towards a depression. She agreed that she never advised Mrs. D to seek medical help. In her judgment, Mrs. D was quite able to look after herself. She felt she was perfectly capable of solving her own problems. She did not with fully appreciate how far down the road to serious depression Mrs. D had gone.

PAW’s e-mail: 1 March 2001

[125]On 1 March 2001 PAW sent Mrs. D and SH an e-mail. “We don’t have a stable UK payroll group who can take on anything at the moment. Without any specific actions I predict a dramatic fall of performance in the next quarter so we cannot put extra burden on top of existing job. I believe the minimum requirements for us would be 1.5 people which is half a head less than we agreed in (sic) the 9th Feb meeting… Half a head is about $60k… If I get that we have a deal.” Half a head is about $60k… If I get that we have a deal.”

Mrs. D speaks to SH

[126]Mrs. D says this:

“On an occasion at the beginning of March [SH] came to my desk to speak to me. It was obvious there was something wrong. He asked me to write down what was bothering me and he would go through it with me. I wrote it in the form of an e-mail which I then discussed with [SH].”

[127]She describes herself in these terms:

“I was in tears. I was trying to keep together. Tears were beating me. I was quietly crying.”

[128]The document Mrs. D wrote is headed “Issues.” It is in my view an important document. “As discussed earlier, here is what I perceive as the problem… …Summary… Unclear management direction – [PAW]. HR Project Managers – lack of understanding … Beaucrocracy (sic) 1. Integrations are planned, we get these agreed with [PAW] 2. [PAW] starts kicking off about resources and the fact that the payroll dept is unable to take additional work, or the dept is unstable (his doing for demoralising the employees who are there!) 3. [PAW] puts pressure on or starts going off the head at me for wanting to integrate these acquisitions 4. We try to help out by transferring funds to ES 5. M and A agree…on the funding – send details to [PAW] 6. I forge ahead with the integration 7. [PAW] then comes back…want more heads…to/fro with various emails 8. [PAW] tells sustaining payroll they cannot take on integrations until he has the headcount! 9. TD stopped again! 10. 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!” …Summary… HR Project Managers – lack of understanding …

Beaucrocracy (sic)

[129]I see no reason to doubt that Mrs. D is there truthfully setting out the position. The contemporaneous documents bear that out. Insofar as the defendant’s witnesses disagree, I prefer her account.

[130]In the next section of the document Mrs. D states that she does not want to be part of HR: when she took the job it was a finance one and that is where her skills lie. She wants to continue her career in a finance job.

[131]Under the heading HR/ES she says this, “…2. Project meetings- HR want to have 2 meetings per week for the first couple of weeks for each acquisition…I cannot attend all these meetings and get the work done! They don’t seem to be able to understand this!... [The project managers] want me to update…as soon as the deal is announced…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!… 4…I have a lot more…on my plate… 5. Why do I always feel completely demoralised when I work with any of the HR project teams. They know I have an issue with resource…they do not seem to care. 6. I always get the feeling they are getting at me… This situation will not improve for me until [PAW] sorts out the sustaining organization, 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 it any more. I cannot sustain doing the level of work I am currently doing. No one is getting 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/PAW are demoralising me and I want out.”

[132]Mrs. D says that the reference to “been here twice before” was not to mood swings but to postnatal depression. She says that in the discussion with SH there was reference to her mental health based on the last paragraph. She believes she used the words postnatal depression, although she does not completely recall. She did not have to explain about postnatal depression (because SH already knew about her history regarding it).

[133]SH says that at that time he was not aware of problems escalating or continuing because the work was being done. As to the document, he agrees that if he did not, he should have read it line by line. He agrees that if he did not know about postnatal depression and did not understand the reference to “been here before- twice”, it would have been reasonable to ask. He says that if it was significant, he would have expected Mrs. D to have raised it. His recollection is that it was not a significant part of the discussion. He says that if Mrs. D had told him she was referring to postnatal depression, he would have to have taken some immediate action. He doubts that Mrs. D mentioned postnatal depression and that it went over his head.

[134]The following seems to me to be the position. As Mrs. D says, in her mind the reference to “been there twice before” was to her two previous episodes of post-natal depression. It was not to mood swings. She had not suffered twice previously from mood swings. She knew she was suffering the symptoms of depression. She had twice before. Mrs. D did not spell out what she meant. There was no discussion of postnatal depression or Mrs. D’s mental health as such. There may well have been discussion regarding the stress Mrs. D was under (plain not least from the fact she was crying at her desk). It may be Mrs. D did not mention depression because she believed SH would understand the reference, knowing as I have concluded he probably did, of her previous episodes of postnatal depression. Had there been such discussion, I accept, as SH said, he would immediately have taken action. SH did not understand the reference as being to depression. He did not focus on the words. He never asked what they meant. Had he Mrs. D would have told him.

[135]SH broadly suggested three possible courses of action. First, a green badge resource. Mrs. D rightly says that had been tried before and came to nothing. She did not have the time to deal with it. She had handed it over to others. Second, a cut-back in hours by further ZBB reductions. Mrs. D says, and the contemporaneous documents support her, there were no further hours to cut. She could not reduce her tasks any further. To do so would have had serious consequences. The HR and the finance managers would be “up in arms” because the work had not been done. The employees of the acquired companies might not be paid or paid the wrong amounts. Third, transfer out of the team (rotation). That required PAW’s authority.

Mrs. D’s meeting with PAW: 19 March 2001

[136]By 19 March 2001 the position had not essentially changed. On that date Mrs. D had a one to one meeting with PAW. She made a note regarding it. There is reference to the ZBB process: also to “tools and processes.” As to rotation it says, “[PAW] wants me to stay in the job for two years. He can see the development potential for me within ES” He can see the development potential for me within ES”

[137]Mrs. D says that PAW told her that her career could and probably would be affected by a move at that stage. In other words, that leaving the department would prejudice her career. Although he does not specifically recall the conversation PAW says he would not say such a thing. There would be no question of Mrs. D’s career being prejudiced. He would have no say in her future career if she left the department.

[138]Although there is no specific reference in Mrs. D’s note to the effect that her career would be prejudiced, I believe her account of this conversation. The note does suggest that PAW was asking her not to move. It would be natural when asking her not to, to express a view as to the consequences if she did and seek to dissuade her.

[139]There was also discussion regarding the claimant’s grading. According to the notes, PAW said Mrs. D was very close to achieving a grade 6. What was holding her back was that, “[she was] bogged down with doing actual work, rather than developing processes and tools and using ZBB effectively. I pointed out that this was unfair and that I was being penalised for [management] not resourcing the position properly (he agreed and could see my point). We discussed that having 5 HR Project [managers] to one of me was the problem… [PAW] will talk to [MD] re getting me some help/resource to enable [movement] forward…” We discussed that having 5 HR Project [managers] to one of me was the problem… [PAW] will talk to [MD] re getting me some help/resource to enable [movement] forward…”

MD’s e-mail: 20 March 2001

[140]On 20th March 2001 MD sent Mrs. D an e-mail. He stated that he intended to restructure the group. “A specific change will be more robust support in the payroll area … As I mentioned it is my intent to use Kathryn Gilbert’s vacancy and post a req. for M&A payroll support. With the dept. structure consisting of of 2 payroll staff, one will be at a junior level, the other at a more senior level grade 5 to 6 depending on experience. …I’m understanding that you have a definite goal of working in Finance specific areas- and are actively applying. With this in mind, I need to put appropriate plans in place…”

[141]It was in March that Mrs. D says MD told her that the front end/back end jobs would not be merged.

[142]The permanent post was publicised. In what seems probably to have been the end of March 2001 a suitable Intel candidate called Kirsty McCallum applied for the position. However, she was not offered it immediately. It was only offered towards the end of May 2001. On 6 June 2001 she resigned before ever taking it up.

[143]Mrs. D says that , “In the light of that e-mail of 20th March 2001 … and taking account of…PAW’s warning about the possible effect on my career at Intel of a move away from M&A, and encouraged by [MD] urging me to stay in direct conversations with him – I decided to stay. I thought about all the positive things I had achieved in taking on this job and I did have serious ambitions for promotion. The resource issue was still critical but if I could believe that another permanent full-time head was being added to M&A payroll, this would change everything. The resource problem would be solved … with [MD] in play … I would have support and clear direction at last.”

Mrs. D’s e-mail: 26 March 2001

[144]On 26 March 2001, in an e-mail to PAW and MD Mrs. D said, “This is just a quick note to let you know that due to the new org structure that [MD] has come up with, I feel there is the opportunity to take the M&A payroll position to the next level (I don’t necessarily mean grade here). I want to be the one that does this and with the support of Michael and the additional resource I feel this is something I can do … 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 progress. Thanks for all your support” Thanks for all your support”

[145]On the face of it, as the defendant suggests, this e-mail was upbeat: that it did not carry a message of imminent breakdown: that it suggested somebody who wanted to carry on. Mrs. D said this about that suggestion. “Because they had agreed to put a blue badge alongside me, I am not someone to throw in the towel at first problem. I try to keep going. 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.”

[146]I accept Mrs. D’s evidence about this and events in March following her meeting with SH at the beginning of March.

The annual performance review: 1 April 2000 to 31 March 2001

[147]SH wrote the review. He signed it on 6 April 2001. It contained feedback from others. It suggests Mrs. D was someone of the very highest calibre. Her “interpersonal skills” were described as “excellent.” “Direct, honest and open…willing to ask for and accept advice.”

[148]SH rated her as “outstanding.” Under the heading “top three areas for development” it is stated among other things, “Project management Being a part of the Mergers Acquisitions team, D has developed skills in this area, however these could be further enhanced, by on the job training/attending a project management course. This would help her ability to multi-task multiple projects effectively – at present being managed by excessive hours.”

[149]An earlier draft of this section of the appraisal did not refer to excessive hours. The reference to them was added by SH.

The beginning of April 2001

[150]I can take events thereafter very shortly. The hoped for additional employee did not materialise. Mrs. D’s health deteriorated. She saw her doctor on 11 May 2001, when she stated that she “could not take any more.” The doctor’s note says this. “Depressed again-gradual [increase] in symptoms over [6 months] due [to] stress at work- working 50-60 hours/week. Husband off work. Not enjoying anything. Poor sleep. Chat. Does not want time off work.”

[151]Mrs. D says that she was worried that if she went off sick, her work would just pile up.

[152]By 6 June 2001 a temporary contactor called Mike Rees was to be employed. On 7 June 2001 it became apparent that Kirsty McCallum would not be coming. Mrs. D was asked if she still needed Grace Wicks to help her, if so, for how long. Mrs. D responds by saying “At the moment I don’t need her help. We have a contractor [Mike Rees] starting 13 June, full time, so this should eliminate the need for any further help…”

[153]On 7 June 2001 Mrs. D attended the defendant’s Occupational Health Service. On 14 June 2001 she was signed off for 3 weeks by her general practitioner with depression. 15 June 2001 was her last day in the office. The next day, at home, she attempted suicide. The argument and conclusions The relevance of the previous history of postnatal depression

The argument and conclusions

[154]It is agreed by both psychiatrists that previous episodes of postnatal depression make a person more vulnerable to subsequent episodes of non postnatal depression. Mr. Moore submits that the defendant should have known that. As a reasonable employer it should have taken into account that Mrs. D’s mental health was more at risk if she were placed under stress. Both Mrs. Bennell and CR believed there was a heightened risk. There had been two previous episodes. They were recent. Mrs. D had returned to work too soon after each.

[155]It was not good enough, as is agreed was the case, to keep the information provided by Mrs. D in March 1999 confidentially on file in the Human Resources Department. Mrs. D’s managers should have been told. That information was not confidential, as is a health screening questionnaire: see Hartman (above). Each of her managers should have been told of those episodes. Managers should have access to such medical information.

[156]Mr. Moore submits also that the defendant is fixed with knowledge of what was said in March 1999. It had the information on file. He relies on the provisions of the Disability Discrimination Act 1995. Section 4A(3) of the Act provides that no duty is imposed on an employer if the does not know or could not reasonably be expected to know that the person has a disability. The Code issued under the Act provides that “If an employer’s agent or employee(such as…a personnel officer…) knows in that capacity of an employee’s disability an employer will not usually be able to claim that it does not know of the disability”

[157]I can take this quite shortly.

[158]On the face of it Mrs. D suffered two discrete episodes of depression wholly connected with the birth of her children. She had worked for some seven years for the defendant before the first episode. Once treated for the first she made an apparently complete recovery. She apparently did so again after the second. There was nothing in what the defendant was told to suggest Mrs. D was susceptible to work related depression. It is clear from the evidence that far from being thought susceptible to work related depression as a result of postnatal depression, Mrs. D was considered a capable resilient employee by everyone (including SH, who of course on my findings knew of the postnatal depression). Although Mrs. Bennell and CR speak of their concerns regarding it in the context of stress, they said nothing at the time. Moreover it would not be surprising if, Mrs. D as an individual apart, an employer failed to appreciate the susceptibility of someone to non postnatal depression following two episodes of postnatal depression. Although not a matter of their expertise, it seems to me that both psychiatrists were right when they expressed the view that a reasonable employer would not in circumstances such as the present consider someone in Mrs. D’s position at greater risk of stress related depression than the normal employee.

[159]It is not necessary to deal with the other points raised by Mr. Moore. In short, assuming knowledge of the previous episodes of postnatal depression, I do not accept that as a reasonable employer the defendant here should without more have taken into account that Mrs. D’s mental health was more at risk if she were placed under stress.

The cumulative effect of Mrs. D’s communications

[160]Mr. Moore submits, that the conversations of December 2000 and the beginning of March 2001 apart, the defendant should have foreseen from the many communications and complaints from Mrs. D that there was a real risk to her health. He draws my attention to what is said in paragraphs 26 to 28 of Hatton. Paragraph 26 states:

“…an employer should be more alert to picking up signs from an employee who is being overworked in a demanding job…It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon an individual employee which is in all the circumstances of the case unreasonable…”

[161]Paragraph 27 emphasises the important difference between signs of stress and signs of impending harm to health. Paragraph 28 states that harm to health may sometimes be foreseeable without an express warning.

[162]Mr. Moore also submits that what Mrs. Bennell and CR said about Mrs. D is relevant as to possible injury to health.

[163]Mr. Moore too relies upon a breach of the defendant’s breach of Regulation 4 of the Working Time Regulations 1998. Mrs. D worked more than 48 hours. He cites Hone v Six Continents Retail Limited

[2006] IRLR 49

, where an employer was found liable simply on the basis of excessive hours, albeit considerably more excessive than those in this case.

[164]I have set out my conclusions individually about some of the documents and protests relied upon by Mr. Moore. Bearing those conclusions into account, and subject to what I shall say about the events at the beginning of March 2001, I agree with Mr. Porter: those communications and complaints 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. The managers did not know of Mrs. D’s “explosions.”

The meeting with SH at the beginning of March 2001

[165]Finally I come to the meeting with SH. Mr. Moore places a lot of reliance on it. He emphasises how important it is to have regard to the context in which that meeting took place.

[166]Mr. Porter submits no criticism can reasonably be made of SH. He did not know time was critical (as far as Mrs. D’s health was concerned). She did not draw depression and mental health to his attention. There is no specific reference to mental health in the document. The reference was not sufficiently clear to justify further probing. As was said in paragraph 29 of Hatton, the employer is not required to make searching enquiries of the employee. He is generally entitled to take what he is told at face value. Subsequent communications from Mrs. D do not suggest a risk to Mrs. D’s mental health. They suggest an interest in the job and manifest some optimism.

My view

[167]As I have said, the reference to “been there twice before” was to the two previous episodes of post-natal depression. Mrs. D was flagging up that the stress she was under for the reasons she was there setting out was affecting her mental health. She may have thought SH knew what she was referring to because he knew of her two previous episodes of postnatal depression. Depression and mental health were not in terms discussed. SH did not read the document line by line. SH did not focus on the last paragraph. He never asked what it meant. Had he Mrs. D would have told him.

[168]I have reached the following conclusions.

[169]First, what happened between Mrs. D and SH must be considered in context. Before this meeting there had been continual complaints by Mrs. D 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. D would in effect have to do the work of two people. Mrs. D was doing all the work required. It should have been clear that Mrs. D was working the sort of hours she states.

[170]Second, the immediate backcloth to this exercise was SH finding Mrs. D 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.

[171]Third, Mrs. D in a long, detailed and truthful document set out what was wrong.

[172]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.

[173]Fifth, had SH asked Mrs. D 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.

[174]Sixth, urgent action should have followed. SH appeared to accept as much. Mrs. D’s workload should immediately have been reduced. She should have seen the doctor.

[175]Seventh, I have no doubt that a company with the resources of Intel could immediately have ameliorated the position as far as Mrs. D was concerned. When she finally suffered her breakdown in June 2001 it was able very speedily to ensure the work was done.

[176]Eighth, in such circumstances the longer term options suggested by SH were not sufficient.

[177]Although not necessary for my decision in this regard, I would make the following observations on what subsequently happened in March.

[178]As at 26 March 2001 no assistance had been obtained. One possible option, that of rotation, was made unattractive, as I have found. Although MD’s suggested re-organisation appeared attractive to Mrs. D (who of course by then was very unwell), and in her e-mail of 26 March 2001 Mrs. D acknowledges that, she plainly assumed that MD intended the additional employee to be in post sufficiently quickly to make a speedy difference to her workload. In the event, no-one was in post by June. As Mrs. D says her optimism as reflected by her e-mail of 26 March 2001 was short-lived. It was clear to her that, “within days that it would be possibly weeks before anyone was appointed.”

The availability of counselling/support

[179]As is clear the defendant had Human Resource services, counselling and medical assistance available for its employees. Mrs. D had in the past made use of them after the episodes of postnatal depression. She had contacted Mr. Schofield in October 2000. Although she later did so, Mrs. D did not see anyone connected with the defendant’s counselling services or the defendant’s doctor before or in March 2001. That failure of her part, submits Mr. Porter goes both to the foreseeability of her injury and as to whether the defendant took sufficient steps.

[180]Paragraphs 17 and 33 of Hatton refer to this. “17…we do know of schemes…which recognise and respond to the peculiar problems presented both to employees and employers. The key is to offer help on a completely confidential basis. The employee can then be encouraged to recognise the signs and seek help without fearing its effect upon his job…responsibility for accessing the service can be left with the people…best equipped to know what the problems are…and if reasonable help is offered either directly or through referral to other services, then all that reasonably could be done has been done…an employer who does have a system along those lines is unlikely to be found in breach of his duty of care towards his employees… 33. It is essential…once the risk of harm to health from stresses in the workplace is foreseeable to consider whether and in what respect the employer has broken that duty…in every case it is necessary to consider what the employer…should have done…an employer who tries to balance all [the] interests by offering confidential help to employees who fear that they may be suffering harmful levels of stress is unlikely to be found in breach of duty; except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear.”

[181]As to the counselling service provided, Mrs. D says that was, “a short term solution for fairly minor issues…[its] scope…is…short term counselling…Counselling and advice…if necessary refer the employee back for example to his/her GP… [It] addresses on a short term basis issues from within yourself (postnatal depression is a very good example). It can do nothing if those issues are triggered by external circumstances, such as work overload…Unless and until the…overload ceases there is nothing effective [it] can provide. Knowing this, calling them was literally a desperate last resort…the counsellor I spoke to made it clear that they could not assist and told me to contact my doctor immediately.”

[182]Mr. Moore submits that it is not the law that a large employer can in effect buy off a future duty by a before the event counselling service. On the facts of this case this counselling service could be of little or no help to Mrs. D. It could not, as any reasonable employer would have known, do anything to reduce her problem. It could not reduce the workload. As Mrs. D has stated its scope is limited. The demands were totally unreasonable and the risk of harm was clear.

[183]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. D 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. D’s health was clear. A short term counselling service could not have done anything to ameliorate that risk or help Mrs. D 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.

Causation

[184]Dr. Wallbridge says there was a window of opportunity for the work stresses to have been addressed before the depression deteriorated to the point it did. By that he means, among other things, reducing the work load. He feels “fairly confident” that appropriate action by the defendant in January or February 2001 would have averted a significant depression. He said at first that was possibly so in March. When asked to elucidate, he said, “I think I would say probable in March.” When asked by Mr. Moore what the probable consequence would have been had action been taken by the defendant in early March, he said Mrs. D would not have suffered the severity of depression she did. He said that was a subjective view and another clinician might have a different one.

[185]Professor Fahy agreed as far as January and February were concerned. He said he was “less clear” about March. He took a “slightly different” view from Dr. Wallbridge. Professor Fahy considered it significant that Mrs. D in her account described a deterioration in March (when she spoke to SH). He relies on her account. He could not say on the balance of probabilities that intervention in terms of Mrs. D’s work then, given her troublesome and intrusive symptoms, was likely to be effective in preventing a major depressive disorder: in preventing the progression of the illness. It was a possibility.

[186]In short, the difference between Dr. Wallbridge and Professor Fahy comes to this. Dr. Wallbridge considers that intervention in terms of Mrs. D’s work would probably have affected the outcome. Professor Fahy thinks it possibly might. On the basis of my findings, Dr. Wallbridge thinks that intervention following Mrs. D’s conversation with SH would probably have made a difference. Professor Fahy thinks it might have.

[187]Professor Fahy seemed to me to make a number of significant concessions to Mr. Moore. He dated the onset of a diagnosable disorder of clinical depression from May. He agreed Mrs. D told him that her symptoms had become especially troublesome and intrusive in April 2001 and that that the acute psychiatric deterioration was in May/June 2001. I observe too that in his letter of 9 February 2006 Professor Fahy expresses an opinion that by May 2001 a period of sick leave due to depression had become virtually inevitable.

[188]It is clear too that Mrs. D herself believes that action by the defendant considerably after March would have made a difference. That seems to me relevant, albeit to a very limited extent.

[189]Although very much a matter of overall impression, for the reasons set out in paragraphs 187 and 188 above, I prefer Dr. Wallbridge’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. D’s depression. I shall expand on that when dealing with damages.

Damages

[190]There are many uncertainties relevant both to general and special damages. As counsel accept, I have to approach the matter with a fairly broad brush.

[191]As to the present depression, Dr. Wallbridge states that appropriate intervention by the defendant at the beginning of March 2001 would probably have resulted in a less severe depression. As I understand him, if it required her to be off work, which his letter of 16 March 2006 appears to suggest was probable, it would not have been for anything like as long as has been the case. It would have been short term sick leave. Mrs. D probably would not have suffered the chronic depression which now afflicts her.

[192]Both psychiatrists accept that Mrs. D’s depression was multifactorial in origin. Without going into all the detail, the relevant aetiological factors are agreed to include her previous history of depression, a family history of psychiatric illness, personality factors, including low self esteem, an unresolved psychological reaction to the termination of her pregnancy in 1988 and the problems at work. Her longstanding psychological vulnerabilities reduced her resilience in coping with work-related stress. Her prior psychological vulnerability contributed to the severity and chronicity of her depressive illness. Given the acceptance by both psychiatrists of Mrs. D’s vulnerability, it does not seem to me necessary to resolve a dispute as to the significance of the episodes before the postnatal depression.

[193]Although Professor Fahy did not like Dr. Wallbridge’s characterisation of events at work being the precipitant of the depression, there was it seems to me no essential dispute between them. Without the stress at work there would not have been a breakdown at the time there was. That means the stress at work precipitated the breakdown.

[194]Given the aetiology and Mrs. D’s vulnerability, it is clear that without the stress at work Mrs. D was at risk of suffering a depressive illness in any event. It is agreed that the risk of further episodes of depressive illness following the last postnatal depression was high. Dr. Wallbridge put that risk at 50% over a ten year period. Professor Fahy put it 70% over a five year period. Taking the second postnatal depression as about October 1988, in Dr. Wallbridge’s view therefore there was 50% risk that by about October 2008 Mrs. D would have suffered a further episode of depression. In Professor Fahy’s view, there was a 70% risk of such an episode by October 2003.

[195]Each of the psychiatrists purports to rely upon appropriate research and his clinical judgment. Dr. Wallbridge relies on two pieces of research. The first, that of Piccinelli and Wilkinson, concerned the recurrence of depression following an earlier episode. That research did not specifically concern previous episodes of postnatal depression. It suggested a 50% risk of recurrence after 5 years, a 76% risk after 10 or more years. The second piece of research, that of Cooper and Murray, specifically dealt with recurrence of a non postnatal depression following an episode of postnatal depression which had been treated by a psychiatrist at hospital (which was not the case with Mrs. D). That risk was lower, 38% over 5 years. That, it is agreed, would translate to 50% over 10 years.

[196]Professor Fahy’s view was based on Piccinelli and Wilkinson. He did not originally consider Cooper and Murray. When he did, he said that account should be taken of the fact that in this case there were two previous episodes of postnatal depression: also of the patient. It was, he said, not an exact science.

[197]Mr. Porter submits that a 50% risk in 5 years would be a sensible compromise between the opposing views.

[198]Again, broadly, I prefer Dr. Wallbridge’s opinion. Unlike Professor Fahy, he took into account the nature of the previous depression. However, there does seem to me to be some substance in the criticism he failed adequately to consider there were two episodes of postnatal depression. Doing the best I can, it seems to me the probable risk of a further episode was in the order of 50% over 8 years. In other words, I shall work on the basis that by about October 2006 there was a 50% chance that Mrs. D would have suffered a further episode of depression, stress at work apart. Given Mrs. D’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.

[199]There is an issue as to prognosis. Mrs. D has been off work and suffering from serious depression now for some five years. She is self harming. It is agreed there is little cause for optimism in her clinical presentation. A further negative prognostic factor is the chronic nature of the current depressive episode. The most optimistic outcome that could be hoped for would be that following the conclusion of litigation (something that in Professor Fahy’s opinion is a perpetuating factor) and more effective treatment, her gradual improvement will accelerate: that she may be fit to return to part-time employment after one year, full time after two years, at a lower level of functioning. Dr. Wallbridge is of the opinion that the chance of recovery within two years is less than 30% and within five years less than 50%: that the likelihood of a return to work during these times is correspondingly low. Professor Fahy said he suspected that Dr. Wallbridge’s opinion was on the gloomier side of the spectrum, although based upon respectable publications.

[200]Again, I have to do the best I can given many uncertainties. It does seem to me that there is substance in Professor Fahy’s view that the litigation adds to Mrs. D’s stress. Its conclusion will probably aid her recovery.

[201]The following would seem to me an appropriate approach. A return to work within two years is improbable. There is a somewhat higher than 50% chance that Mrs. D could return after 5 years. However, the job is unlikely to be at her previous level. A return to work at her previous level at any time now seems to me improbable. Mrs. D is receiving some £13,000 per year from an insurance scheme run by the defendant. Mr. Moore submits that it is unlikely she would earn more or much more than that if she were able to return to work.

General damages

[202]Subject to possible discounts, a figure of £24,000 is agreed for general damages.

[203]Mr. Porter submits that that figure should be reduced for two broad reasons. First, to reflect the aetiology. Second, to take account of the fact that Mrs. D might have suffered her symptoms without any negligence by the defendant.

[204]As to the first point, he relies upon what was said in paragraphs 36, 37 and 43(15) of Hatton. “36. Many stress related illnesses are likely to have a complex aetiology with several different causes…a wrongdoer should only pay for that proportion of the harm suffered for which he by his wrongdoing is responsible… 37 It is different if the harm is truly indivisible: a tortfeasor who has made a material contribution is liable for the whole, although he may be able to seek a contribution for other joint or concurrent tortfeasors who have also contributed to the injury. …41…if it is established that the constellation of symptoms suffered…stems from a number of extrinsic causes…a sensible attempt should be made to apportion liability accordingly… …43(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible…”

[205]Mr. Moore submits that on proper analysis the harm here is indivisible.

[206]Mr. Porter also submits that paragraph 42 applies. “Where the…breach of duty has exacerbated a pre-existing disorder or accelerated the effect of a pre-existing vulnerability, the award of general damages…will reflect only the exacerbation or acceleration. Further the quantification of damages for financial losses must take some account of contingencies…one of those may well be the chance that the claimant would have succumbed to stress related disorder in any event.”

[207]In accordance with my findings, it seems to me general damages should reflect the following position. Mrs. D was a highly vulnerable personality. By the beginning of March 2001, the time of the defendant’s liability, a depression was inevitable. It would probably have involved some time off work, although it would not have been as severe or chronic as has happened. The defendant’s negligence was a cause of a more severe and chronic depression from which Mrs. D has not recovered. There was in any event 50% chance that Mrs. D would have suffered a depression in the next eight years. It might have been a severe and chronic one.

[208]Provided the features to which I have referred are taken into account (and not duplicated) whether the discount is said to reflect an apportionment or is said to be an acceleration of a pre-existing condition does not seem to me to matter. To reflect those features, an appropriate discount would in my view be in the order of one third. An appropriate figure for general damages on the basis of the agreed figure is therefore £16,000.

Special damages

[209]In addition to other agreed figures, Mrs. D is entitled to her loss of earnings on the basis of the agreed calculations until the present. However, a discount must be applied to reflect, first, that the depression from which she would in any event have suffered would probably have led to a period off work, and, second, that implicit in the risk of a 50% chance of suffering a severe depression within the next 8 years is the possibility it might have occurred sooner. Again, doing the best I can, it seems to me a reduction of 25% would be appropriate to reflect that.

Future loss of earnings

[210]Any figure for future loss of earnings must reflect the following.

[211]First, that Mrs. D might be able to return to work as I have set out above. However, given that she is unlikely to earn much more than she now receives from the insurance payments (see above), it seems to me, taking a broad brush approach, I can set aside any benefits she might receive from a return to work.

[212]Second, it must reflect the increasing chance that Mrs. D would have suffered a depression in any event. By October 2006, on my findings, a depression to some extent was probable. Mr. Porter has submitted that means Mrs. D is entitled to nothing to reflect the probability that (on my findings) after then she would in any event have been unable to work due to depression.

[213]As it seems to me, the following is the position. By October 2006 Mrs. D would probably have suffered a recurrence of depression. If so, it might have prevented her working for some time or a very long time, possibly for ever at her previous level. A full multiplier for future loss of earnings is agreed to be 18.41. In paragraph 42 of Hatton Lady Justice Hale referred to the decision of Otten J in Page v Smith PIQR Q 55, in which he reduced the multiplier for future loss of earnings from ten to six to reflect the many factors making it probable that the claimant would not have had a full and unbroken period of employment in any event (and the real possibility of early termination of employment because of absences of work).

[214]Given the vulnerability of Mrs. D’s personality, a very substantial reduction must be made from the multiplier in this case. Mr. Moore submits a 50% reduction would be appropriate. That seems to me too small on the facts of this case. Doing my best to be fair to both sides, it would seem to me appropriate to reduce it to 6, a reduction in the order of 66%.

The other elements of special damage

[215]The other elements of special damage must take account of my view of the multiplier.

Conclusion

[216]I leave it to counsel to calculate the resulting figure for damages to reflect my decision.