Daniel v Secretary of State for the Department of Health [2014] EWHC 2578 (QB)

Case No HQ09X04150

[2014] EWHC 2578 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/07/2014

Before

SIR ROBERT NELSON

Between

PATRICIA DANIELClaimant

SECRETARY OF STATE FOR THE DEPARTMENT OF HEALTHDefendant

Andrew Buchan (instructed by G H Canfield LLP) for Claimant

Andrew Warnock QC (instructed by Clyde & Co) for Defendant

Hearing Hearing dates: 25 th-27 th March 2014 and 31 st March 2014

Judgment

Sir Robert NELSON :

[1]The Claimant was employed by the Defendant, in its earlier form as the Ealing, Hammersmith and Hounslow Health Authority, then the Hammersmith and Fulham Primary Care Trust, as Network Co-ordinator of the West London Cancer Research Network (WLCRN) re-titled later as Cancer Research Network Manager. She commenced employment in March 2002 and initially was responsible for setting up the network in conjunction with her line manager Dr Richard Kaczmarski, Consultant Haematologist at the Hillingdon and Ealing Hospitals, and the Network’s Clinical Lead. The Claimant and Dr Kaczmarski effectively built WLCRN from scratch, recruiting staff, establishing staff placements through the NHS Acute Trusts, building the local research portfolio, training and education and arranging finance and funding contracts.

[2]The Claimant alleges that in the course of her employment with the Defendant she suffered occupational stress which developed into a psychiatric condition leading to her becoming an inpatient at a mental health hospital and seriously continuing mental ill health. It is agreed between the psychiatrists instructed by the parties that the Claimant had a pre-existing history of bipolar disorder which carried a very high rate of recurrence. It is also common ground that the Claimant’s pre-existing condition was unknown to the Defendant.

[3]It is alleged that Claimant’s stress and subsequent mental illness were brought about by the negligence of her employers in permitting her to be bullied by Professor Hani Gabra, Professor of Medical Oncology at Imperial College London, and head of department at Hammersmith Hospital. The alleged bullying and victimisation was not, it is contended on behalf of the Claimant, properly dealt with by the Defendant. It is, the Claimant contends, reasonably foreseeable that such victimisation or bullying can lead to a risk of mental injury. The case was opened upon the basis that it was essentially one of bullying, with the Defendant’s failure to see that this was happening and deal properly with it by bringing to an end, but it is also alleged that from October 2005 the Claimant had effectively two jobs to do and was consequently seriously overworked. The Defendant, it is alleged, negligently permitted this overwork situation to continue, which contributed to the stress which the Claimant was under, leading to her psychiatric injury. The Claimant needed support from her line manager but this, save for a brief period from September 2006, was not, it is alleged, provided.

[4]Furthermore it is alleged that on the occasions when the Claimant returned to work in 2007 and suffered further breakdowns, the negligence continued in that the returns to work were not properly handled, there was no appropriate risk assessment in writing and the further risks to the Claimant were improperly dealt with.

[5]It is contended on behalf of the Defendant that there was no bullying, that the Claimant willingly undertook additional work responsibilities, that there was no foreseeable risk of injury, that if a duty on the part of the employers did arise there was no breach, and causation has not been established.

The facts

[6]The WLCRN is one of thirty four cancer research networks in the UK funded by the Department of Health to increase the number of patients entering cancer clinical trials approved by the National Cancer Research Network (NCRN). There are four networks in London, North, South, East and West. The Defendant, formerly the Hammersmith and Fulham PCT, provided the HR functions and held the project budget for WLCRN. The need for the setting up of new networks had been stated in September 2000 in a report entitled “The NHS Cancer Plan – A Plan for Investment a Plan for Reform”. This envisaged the need to prevent the NHS from falling further behind the level of cancer services experienced elsewhere in Europe. The NHS was to contribute through stronger support for clinical trials supported by additional funding.

[7]The Claimant’s job required her to lead, manage and develop WLCRN, its staff and its budget. She was required to manage the work of the Network to meet the aims of the NCRN, ensuring accrual of patients into trials was achieved and maintained within the Network. She was also responsible for the development and implementation of research strategy. Her job description required her to ensure effective communication for the Network by developing close partnerships and productive working relationships with key individuals and groups across the Network, NRCN and the wider cancer research community.

[8]The task of the Networks was to compile data about the incidence of cancer in their population area. The aim, as Mr Andrew Buchan, counsel on behalf of the Claimant said in opening, was to organise the best configuration of services to meet the needs of the population in the particular network. The trials, and the research inherent within the network’s function and the Claimant’s task was of critical importance in the development of cancer research and ultimately with the treatment of patients. The Claimant said in evidence that the hospitals across the WLCRN are Hammersmith Hospital, Charing Cross Hospital, St Mary’s Hospital, West Middlesex Hospital, Northwick Park Hospital, and Central Middlesex Hospital. Each of these had their own team of consultants and staff seeking to achieve trials and further research.

[9]Professor Gabra was the Professor of Medical Oncology, head of the Molecular Therapeutics Unit and Director of the Ovarian Cancer Action Research Centre at Imperial College. He was also Head of Medical Oncology, Lead Clinician for cancer clinical trials and honorary consultant Medical Oncologist within the Imperial College Healthcare NHS Trust. He was Head of Department at the Hammersmith Hospital. His website described his research as being principally funded by Ovarian Cancer Action, the national ovarian cancer charity; it was also funded from other sources, including from pharmaceutical collaborations. Mr Buchan described Professor Gabra in his opening as a world renowned professor whose research is acclaimed.

[10]When the Claimant met Professor Gabra in the summer of 2004 they discussed how WLCRN might support him to develop gynaecological cancer research. She told him that she could provide a full member of staff to work within his department to support recruitment of patients to trials approved by the NCRN. Professor Gabra made it clear that his role was to head the development of a broad programme of cancer research for Imperial College, not just the NCRN approved studies, but also commercial studies, early phase and experimental research. He was, the Claimant said in her witness statement, very explicit in stating that he wanted to see all research resources pooled together “working without walls”. The Claimant however considered that her remit was to develop studies on the NCRN portfolio and increase patient recruitment to those studies. She thought that she needed to keep NCRN resources, including public funding, dedicated to NCRN research and not applied to Professor Gabra’s commercial and other purposes.

[11]The Claimant was not sure of the bona fides of the use of NHS resources on private commercial trials and felt that the diverting of valuable resources for commercial studies was morally wrong.

[12]The Claimant’s attitude towards “working without walls” was made clear in both her evidence and the opening and closing submissions on her behalf. She was, she told me, sceptical about the use of NCRN funds for the use in commercial trials as she was with mixing of staff. It was a source of underlying disagreement between her and Professor Gabra. She held her views strongly as he did his. She was concerned about the NHS resources being used to support commercial trials when the principal investigator of those trials would be receiving money from them. She felt that industry should fund its own nurses and should be separate from the NHS. Commercial trials were more demanding and she feared that NCRN trials, which were less so, would become a poor second. This dispute on the concept of “working without walls” is an important element in the relationship between the Claimant and Professor Gabra, how they responded to each other and how the responses were perceived.

[13]After the Claimant and Dr Kaczmarski had set up WLCRN it developed very successfully. It went from 34th out of 35 cancer research networks in March 2002 to 10th by October 2003 and exceeded it accrual target in April 2004. In 2003 a Lead Nurse was appointed. She took on the line management of the WLCRN’s clinical staff, thereby enabling the Claimant to spend more time on strategy finance management, governance protocol development and addressing barriers to research. The Claimant did however continue staff management which remained an important part of her role.

[14]In October 2005 the Lead Nurse left the Defendant’s employment. It had been found to be difficult to engage suitably qualified staff for sometime, and in spite of attempts to recruit a replacement for the Lead Nurse no one suitably qualified could be found. The Claimant then took on the role of Lead Nurse. Although she was in one sense reverting to the situation before the Lead Nurse was appointed, i.e. performing all the tasks herself, the two roles had changed and developed over the period since the Claimant started work for WLCRN and there is little doubt that from October 2005 she was doing considerably more than her own original job.

[15]There is no dispute between the parties that the work at WLCRN, as in many parts of the Health service, is exacting and demanding often with very long hours. In an email of 16 February 2007 to a new employee Professor Gabra said:- “Although we are really nice people this is an extremely tough environment intellectually, emotionally and punctually.”

[16]On 19 May 2006, the Claimant, in seeking to ensure that she retained a lease car for her work as her original terms and conditions had provided, stated that her requirement for travel was considerably higher than it used to be, and indicated her long hours of work. She did not complain in this letter or elsewhere of excessive workload or having to do two jobs. Dr Kaczmarski said in evidence that the Claimant readily took on the role created for the Lead Nurse from October 2005 and was paid accordingly. He thought that her pay was the highest in the NHS for someone performing her job.

[17]Dr Kaczmarski was based at Hillingdon Hospital and the Claimant was based at Charing Cross. Dr Kaczmarski only did one session per week of about 3.5 hours and it was during this session, or otherwise during regular contact by telephone or email, that he line managed the Claimant. They had a strong working relationship as a result of having set up WLCRN, and when the opportunity arose for the Claimant to be line managed by the WLCRN Director, instead of Dr Kaczmarski, she chose to stay with Dr Kaczmarski as her line manager. He carried out two written performance appraisals on the Claimant in October 2003 and September 2004, on both occasions rating her performance as excellent. No further formal assessments were carried out. The evidence.

[18]It is necessary to consider events between 2004 and 2007 in a little detail so as to be able to analyse the conduct of Professor Gabra and the Claimant’s response to it, the demands of her work, and her condition and how it progressed.

[19]I propose to address the events between 2004 and 2007 by reference to the matters set out above, namely the relationship between Professor Gabra and the Claimant, the demands of her work, her condition and how it progressed.

[20]The Court was handicapped by the fact that the only witnesses called as to the Claimant’s employment were the Claimant herself and Dr Kaczmarski. Professor Gabra was not called by the Defendant and Professors Coombes, Seckl and Leonard, and Adeaze Muoma, Clementina Adekoya, Beate Poppinga-Scholz and managers from the NRCN were not called by the Claimant. I therefore accepted, subject to any inferences to be properly drawn, the Claimant’s account of meetings or conversations with Professor Gabra where no email or other document existed, and looked carefully at the hearsay evidence given by the Claimant where no evidence in support was called, and no documentary evidence existed.

The relationship between Professor Gabra and the Claimant

[21]I have set out earlier in the judgment the important background to their relationship, i.e. their respective stances on the concept of “working without walls”. 2004

[22]The tension between the two individuals first became apparent, on the Claimant’s evidence, in September 2004. Adeaze Muoma started as Clinical Trials Co-ordinator in Professor Gabra’s department in September 2004. She was asked by Professor Gabra to start setting up the first commercial trial. The Claimant agreed that this could be done provided Adeaze Muoma had the time to do so. In about October 2004 when Professor Gabra asked Adeaze Muoma to start setting up a second commercial trial the Claimant told her to focus on WLCRN trials. When Ms Muoma told Professor Gabra of this it is said that he said to her that he was now “at war with the NRCN”. This phrase was never used to the Claimant herself and Ms Muoma was not called to give evidence, but the Claimant has given it great significance. On the face of it, Professor Gabra was showing displeasure at the Claimant’s guidance to Ms Muoma that she should focus on WLCRN trials rather than permitting his commercial trials. The Claimant’s case is that Professor Gabra was angry and then when the Claimant went to apologise to him for stopping Ms Muoma from working on commercial trials he said that he was glad that she had come to apologise to him, or he would have had nothing more to do with her. There is no documentary evidence or email trail relating to this matter.

[23]Whoever was responsible for this outbreak of “war”, this appears to be the first evidence of the conflict between Professor Gabra and the Claimant as to “working without walls”, being bought into the open. Mr Buchan submits on behalf of the Claimant that this is the first instance of bullying by Professor Gabra.

[24]The Claimant states in her witness statement that she discussed what had happened with Dr Kaczmarski and told him that she felt that she was being bullied by Professor Gabra. Dr Kaczmarski does not recall such a conversation and indeed states in his witness statement and in evidence that he had no idea that the Claimant regarded her interaction with Professor Gabra as bullying until she sent her email of 5 December 2006.

[25]The Claimant said in evidence that she went to NRCN HQ in Leeds in the latter part of 2004 and saw the National Director, Nancy Lester, who told her that she was right not to be bullied and to only support non-NCRN research if there was some “knock for knock”. There is no email exchange or other documentation relating to this discussion. 2005

[26]From about October 2004 to October 2005 there is no allegation of bullying though it is the Claimant’s evidence that by November 2005 Ms Muoma was working almost full time on Professor Gabra’s commercial work and as a consequence was failing to reach NCRN targets at Hammersmith. In October 2005 the Lead Nurse, Katherine Hughes had resigned and the Claimant had taken over her responsibilities whilst a substitute was sought by the Defendant. She continued in that role for about 12 months as no replacement was found.

[27]At this time Adeaze Muoma was under pressure from Professor Gabra to do commercial trials and felt torn between that and NCRN work. The Claimant told her that she must prioritise NCRN work and stop commercial trials until she was completely on top of the NCRN studies. Unbeknown to the Claimant, Ms Muoma emailed Professor Gabra and said she could do no more commercial work. It is the Claimant’s evidence that Professor Gabra immediately sent an email to all senior clinicians in the gynaecological department stating that the Claimant was damaging his research programme at Hammersmith. The Claimant emailed Professor Gabra to say that she was not aware of Ms Mouma’s email, but that although WLCRN was under the pressure of targets, she still wanted to continue to work with him. This email exchange has not been disclosed by either party. 2006

[28]At the beginning of November Ms Muoma resigned, leaving behind her a significant backlog of work. When the Claimant went to the Clinical Trials office at the Hammersmith on 12 January 2006 to assess the situation regarding Professor Gabra’s gynaecological trials, she found not only the significant backlog but also substandard documentation. She tried to improve the situation by working on data management herself for two weeks which put her behind on her normal responsibilities. As a consequence she brought in two agency temporary data managers to tackle the backlog. This initially improved her relationship with Professor Gabra.

[29]Mr Buchan submits that Professor Gabra’s email sent to the senior clinicians stating that the Claimant was damaging his research programme, was a public humiliation and belittling of the Claimant which caused her shock and distress.

[30]In an email of 31 January 2006 the Claimant informed Professor Gabra of the backlog since Adeaze Muoma had left, and as she was so concerned that the trial documentation was not up to scratch asked him if he would consider not recruiting new patients for the moment. On 3 February 2006 the Claimant wrote a report about the situation noting that since Adeaze Muoma had left the recruitment process for her replacement had been set in place, and informed Professor Gabra that the Network staff were working to capacity and that it was not possible to provide any level of cover; it was left to him to decide how to manage the situation in the interim. The Claimant noted, that as far she was aware, there were no problems until out of the blue on 11 January 2006 Professor Gabra emailed her to say that the situation with regard to NCRN trials within the department was in chaos. He listed outstanding SAE’s (Serious Adverse Events), he asked for immediate assistance and also asked if he should stop recruiting patients. Later in the note, when describing the present situation, the Claimant states that trial managers had considered suspending Hammersmith trials prior to Professor Gabra’s email because of poor management of an SAE and poor quality of data management generally. She stated that she had asked Professor Gabra and his Registrar to stop recruiting new patients but this had been ignored and they started to recruit at an unusually high rate, having recruited five patients since her request. She said she could no longer manage the situation.

[31]This note was sent to Dr Kaczmarski but, the Claimant states, nothing was done about the matter, and on 6 February 2006 the Claimant went to see Professor Gabra’s line manager, Professor Coombes, who it is said intervened so that Professor Gabra at that time stopped recruiting. Professor Coombes was not called to give evidence and there is no documentation relating to this meeting.

[32]It is to be noted that in the report of 3 February 2006 the Claimant makes no reference to stress or ill-health but makes it clear that the Network is working to capacity and her concern is the risks to patients SAEs and quality of work. In her evidence the Claimant said that she was becoming increasingly snowed under and starting to experience symptoms of stress namely insomnia, fatigue and feeling low in early February 2006. She did visit her GP on 2 February 2006 complaining of insomnia and night sweats and concern about osteoporosis which her mother and aunt had had. Hormone replacement therapy was discussed as her symptoms were attributed to the menopause. There is no reference in the GP’s notes to any mention of occupational stress. The Claimant said in evidence that she didn’t know how to explain to the GP her work situation and that that particular GP, a female doctor, gave her a lecture about sleeping tablets so she put her problems down to anxiety about osteoporosis at the time of the menopause, and added in evidence that you don’t have to tell the GP all the reasons for your complaint.

[33]She spoke to Dr Kaczmarski about her workload and an administrator was brought in, she thought, for about a year. She said in evidence that she did tell Dr Kaczmarski about her insomnia and he “rolled his eyes”. Dr Kaczmarski did not recall such a conversation or accept that he had responded in such a manner. In oral evidence the Claimant said that she ‘believed’ she had spoken to Dr Kaczmarski about insomnia, but was not sure whether she had mentioned it was work related.

[34]There is no complaint of bullying by Professor Gabra between February and August 2006. On 10 August 2006 the Claimant e-mailed Professor Gabra about a data manager, Clementina Adekoya, being asked to act as emergency contact for a study when such a request should have been dealt with through the Pharmacy rather than requesting a temporary data manager to be involved. She started her e-mail by saying that:

“It was great to meet Bob Leonard today, thank you for inviting me to meet him” and concluded on the issue of Clementina Adekoya being asked to work in breach of trial regulations as she was a temporary data manager with the words: “I wonder what you think and did you know about this?”

[35]Professor Gabra replied by e-mail stating that he did not know who had asked Clementina Adekoya to perform the task, but that it was fine to find someone else, stating that Clementina should find definite times in the week to meet him face-to-face to resolve such issues before they became issues. That was, he said, the point of his previous e-mail to Clementina, not to harass her in any way. He said that he thought she was great and he was just trying to sharpen up and make effective her role as much as possible.

[36]This exchange of e-mails demonstrates the nature of the relationship between the Claimant and Professor Gabra at this time. Each is tough, the Claimant asking Professor Gabra whether he knew about a potential breach of regulations by him, and Professor Gabra in his comments and approach about Clementina Adekoya. The Claimant told me in evidence that she sought to maintain a professional relationship with Professor Gabra throughout. This e-mail, tough and direct as well, is an example of this. It is a straightforward and businesslike e-mail.

[37]Professor Gabra and the Claimant also met on 10 August 2006, the same day of the meeting with Professor Leonard referred to in the Claimant’s e-mail of that date. When they met, Professor Gabra told the Claimant that he and she should be friends and said that he thought she was truly fantastic. He described how he had worked in Edinburgh with the new national director of NCRN, Professor David Cameron, and with Professor Bob Leonard, and that he was very good friends with Professor David Cameron and knew his children very well. He told the Claimant of his plan for the new model at the Hammersmith, in which everyone would work together in response to need, with no reference to funding, source or demarcation between the types of projects staff worked on, commercial or local academic. He said that Beate Poppinga-Scholz, a Clinical Co-ordinator and one of the Claimant’s staff, was absolutely brilliant and that he wanted her to be in complete charge at the Hammersmith site by overseeing all decisions about trials and workload with everyone, including the Claimant’s own staff reporting to her. The Claimant says that he said to her “Trish, let go of the Hammersmith”.

[38]The Claimant said that she felt that Professor Gabra was seeking to demonstrate the scope of his power and influence by referring to his friendship with Professor David Cameron and that she was so concerned about his influence that she decided that the best course of action was to co-operate with whatever Professor Gabra wanted. She sent him an e-mail on 3 September 2006 stating that she was in broad agreement with his plans, recognising that the infrastructure and relations had been very problematic at times and needed to change. She said that she had also been thinking in a similar way to him about Beate for some time and would be very pleased to support her development. She therefore invited him and Beate to dinner. The e-mail was friendly and constructive and was greeted by a response from Professor Gabra the same day: “That is fantastic” and that her “co-operativity and positive approach to this issue will ensure that you are “one of us” with respect to clinical trials” and that that would ensure extension of her influence as an equal partner who was hands-on on the site in a way which he hoped would be professionally satisfying and highly effective.

[39]The Claimant’s evidence was that she regarded “Trish, let go of the Hammersmith” as being Professor Gabra saying that he wanted her to leave the Hammersmith Hospital. She later considered that Professor Gabra had the intention to oust her from the Hammersmith, but when this was put to him by Dr Kaczmarski, Professor Gabra denied to him that this was so.

[40]On 29 August 2006 the Claimant e-mailed Professor Gabra to inform him that Clementina Adekoya had decided to leave, that recruitment process for a research nurse and data manager was underway but, unfortunately, the Claimant had no means of providing temporary cover for gynaecological trials. She said:

“I feel we may have no option but to suspend recruitment until these posts are filled, but I wonder if you have any other thoughts”

. This e-mail followed an earlier incident in which an e-mail from Professor Gabra had been sent to Clementina Adekoya alleging poor performance. The Claimant said that Professor Gabra apologised later, but Clementina Adekoya still decided to resign. The response from Professor Gabra was to say that he would ensure that she would never work anywhere in the Hammersmith Hospital ever again. Miss Adekoya did not give evidence.

[41]The dinner which the Claimant had suggested with Professor Gabra and Beate Poppinga-Scholz took place on 3 September 2006. Professor Gabra explained that he wanted Beate to be in charge of everything at the Hammersmith site, including all the day-to-day management, workload allocation and strategy. The Claimant said that she was particularly concerned about the addition of strategy to the list as this was her responsibility. She said in evidence that she felt humiliated by this in front of Beate. She had earlier discussed Beate’s position with Professor Gabra at the meeting on 10 August 2006, when he had said that he wanted her to be in complete charge at the Hammersmith site by overseeing all decisions about trials and workload, and everyone reporting to her. It appears that the matter had been discussed again towards the end of August, as the Claimant makes reference to a discussion which took place on the Friday before 3 September 2006, which she refers to in her e-mail of that date when stating that she was in broad agreement with Professor Gabra’s plans and supportive of Beate’s development.

[42]In her witness statement, the Claimant complained about Professor Gabra describing her at the dinner as a feisty woman, asking her for a hug and then leaving after she told him not to ‘badger’ her, and then adding that perhaps badger was the wrong choice of words. She felt that he was trying to bully her into the new agreement he was proposing.

[43]The Claimant’s attitude towards Professor Gabra at this time is set out in paragraph 26 of her witness statement. She was concerned that Professor Gabra might use his personal relationship with Professor David Cameron and Professor Bob Leonard to “influence them to agree to his proposals”:- “I had major concerns about NCRN resources being used in this “without walls” arrangement, but I was also experiencing stress from the demands of my role. I could not cope with the constant conflict with Professor Gabra and his criticism of me and my staff. I decided that the best course of action would be to co-operate with whatever he wanted. I sent an e-mail (3 September 2006) to Professor Gabra stating that I agreed with the broad principles and that I would support Beate Poppinga-Scholz’s development. Professor Gabra replied immediately staying he was delighted by my response, “positivity and co-operativity” meant I could now be “one of us” and that my future with clinical trials at the Hammersmith would now be secured. I concluded that in Professor Gabra’s mind you were either “for him”, in which case he would be “friends” and “one of us” or, if you did not agree with him, you were against him in which case he was “at war” with you.”

[44]On 31 August 2006 Dr Stephen Mangar, an oncologist at the Hammersmith, asked the Claimant to take on an oncology trial. She informed him on 3 September 2006 that she could not open any more NCRN trials in 2006 as they were absolutely at capacity. She said she was unable to give him any support unless it was from her, and was he sure that he was able to take on all the components of data management, etc. on his own. On 14 September 2006 Dr Mangar e-mailed the Claimant saying that the trial was of pivotal importance to him, that he could not develop the plans he had for radiotherapy research without the trial, and that he had spoken to Professor Gabra and to Professor Leonard and both agreed that:

“We do need to support this trial irrespective of perceived difficulties with the infrastructure at the moment”

. He said he was happy to do the initial paperwork, but obviously needed the Claimant’s support. If, however, she did not wish to do the trial she was to let him know. He said he appreciated the difficulties “but we cannot let that prevent us from moving forward”.

[45]The Claimant said in evidence that she regarded this as a bullying e-mail with a level of coercion to it.

[46]On 22 September 2006 Dr Kaczmarski e-mailed the Claimant and referred to the meeting he had had with Professor Leonard. He records the fact that Professor Leonard supported the concept of “working without walls”, but accepted that everyone had to be above board and open about funding, staffing, work priorities, etc. Dr Kaczmarski showed him the e-mail from Dr Mangar as an example of the pressures that WLCRN were under, which stated that Professor Leonard supported the trial irrespective of perceived difficulties with WLCRN infrastructure. Professor Leonard said he did not recall such a conversation except as small talk over a glass of wine. He thought that the e-mail was inappropriate and would take it up with Dr Mangar. Dr Kaczmarski ended the e-mail by stating that “My feeling after today’s meeting with Bob is that we should not be bullied”.

[47]Dr Kaczmarski said in evidence that by “we should not be bullied” he was referring to the organisation, not individuals. You do not have to sign up to something that you are not happy with. He said that Professor Leonard did not regard Professor Gabra as a bully. Dr Kaczmarski said that his reference to Professor Leonard knowing who the “difficult personalities” were, was a reference to three people: Professor Gabra and two other doctors. They were ambitious people wanting to pursue their research agendas and wanting more resources than the Network could offer. Imperial was one of the highest pressured research establishments in the country. Dr Kaczmarski said, however, that he had no experience of them being difficult with data managers.

[48]The Claimant decided to agree to Dr Mangar’s study and said that he could put her down as research nurse. The September 2006 emails.

[49]The next series of e-mails in September 2006 is at the heart of the Claimant’s case on bullying. On 19 September 2006 Rebecca Montgomery, the clinical trials co-ordinator at Hammersmith Hospital, asked Professor Gabra whether the Claimant knew that Rebecca Montgomery was working on the NCRN Decitabine/Carboplatin trial. Professor Gabra asked the Claimant what her status was with respect to that trial and the Claimant replied as follows on 25 September 2006:

“Hani, Normally, if a clinician requires NCRN staff time, I would expect to be consulted, and agree any new trial prior to it going through ethics and R and D. This is so I can ensure we have sufficient staff to manage the workload, or to appraise any potential issues regarding the running of the trial, or excess costs. At the moment, I have put a hold on opening any new trials across the Network until new staff are appointed”

. She suggested that Professor Gabra met Dr Kaczmarski to discuss this trial.

[50]The Claimant was in error in stating that she had not been consulted about the trial. She had in fact been told of it, but had forgotten that this was so. Putting a hold on opening any new trials “across the Network” meant ceasing all NCRN trials involving the Hammersmith, the Charing Cross, St Mary’s, West Middlesex, Northwick Park and Central Middlesex Hospitals. It was a draconian step to take in the evolving development of the “working without walls” concept. This was especially so as the then Acting Director of the NCRN, Professor Rick Kaplan, had made it clear at a meeting on 15 June 2006 at the Hammersmith Hospital, that NCRN supported commercial trials within the NHS whilst recognising that there were difficulties in developing that policy.

[51]Professor Gabra sent two e-mails in response that day to the Claimant, the first at 10:36 am stating that he was unsure about the tone of the e-mail, that the situation was unsatisfactory and that he was thinking of calling a meeting of the oncology chairs to address the increasingly unsatisfactory situation. The second, sent at 11:36 am, said:- “Trish, As you can see from the e-mail trail .. you have been very well aware of this NCRN study for a long time now. I am not even clear about your point regarding me discussing it with you. I am deeply perturbed by the inability of your organisation to carry out the most basic functions on the Hammersmith site currently, and also about your inability to communicate clearly with my team. The strident tone and approach demonstrated by your e-mail this morning demonstrates that you are not really listening even when people are trying to help. It is most unfortunate. Hani” Hani”

[52]Copies of this e-mail were sent to the oncology chairs including Professor Coombes and Professor Seckl.

[53]It is the Claimant’s case that this e-mail was spiteful and deliberately intended to humiliate and publicly denigrate her in the eyes of the oncology chairs. She regarded the e-mail as defamatory and felt that she was being bullied. Professor Gabra could have simply reminded her that she had in fact been previously made aware of the trial without humiliating her in front of her colleagues.

[54]Professor Gabra’s second e-mail of 25 September 2006 is undoubtedly forceful and blunt. It was critical of the WLCRN in its inability to carry out the most basic functions on the Hammersmith site, and directly critical of the Claimant’s inability to communicate clearly with his team and listen. His response must, however, be considered in the context of the e-mail he had received from the Claimant. Firstly, she was disputing her awareness of the trial when she should have been aware of it and, secondly, she was effectively closing down any new trials across six hospitals until new staff were appointed. This was a very serious unilateral step and likely to create a strong response. As Dr Kaczmarski described it, it was an exercise of power and authority by the Claimant. He said he would have taken a more conciliatory approach, even though he did not regard her as being vindictive.

[55]That day, the Claimant decided to report Professor Gabra to Professor Leonard for bullying and did so. She told Professor Leonard of Professor Gabra’s remark about his friendship with Professor David Cameron and the remark that he also knew Professor Cameron’s children well. Professor Leonard laughed at this and said that he did know his children very well. Professor Leonard said that he had come from Wales (where “working without walls” was being adopted) and that if there a manager had said no to a study that would be final. He said he would try and resolve the situation with Professor Gabra and told her to leave the matter with him.

[56]On 27 September 2006 Dr Kaczmarski wrote to the Claimant stating that, in principle, the model of “working without walls” that Professor Gabra was putting forward, was something they could work to for their mutual benefit. The steer from the NCRN was that that was how they saw the future. He had asked Professor Gabra whether he had an agenda to oust the Claimant, but he emphatically denied that. He did, however, say that he was adamant that he was going to implement his model “with or without us”. Dr Kaczmarski said that the danger of not playing our part is that NCRN gets sidelined at all levels.

[57]In evidence Dr Kaczmarski said that he did not interpret Professor Gabra’s second e-mail of 25 September 2006 as bullying; it was more related to the whole picture of one person trying to establish “working without walls” which the Claimant was fundamentally objecting to by not being prepared to relinquish staff to the consortium. She was de facto objecting to the development of the concept.

[58]It was, he said, the Claimant’s stridently held view, against the tide of national direction and local direction, that the concept of “working without walls” was wrong. The NCRN through Professor Kaplan had made it clear in the June meeting that the NCRN supported the pooling of resources in this way and Dr Kaczmarski himself agreed with the concept. He had no doubt that the Claimant was sincere, but her caution about the concept was misplaced.

[59]Dr Kaczmarski said that all the chairs of oncology had commercial work as well as NHS work. The concept of “working without walls” had to start somewhere. It was an evolving process of moving towards the strategy; it was not simply born. Everyone had to be carried with it and the only tool was cajolement and mutual benefit.

[60]On 28 September 2006 the Claimant replied to Dr Kaczmarski asking what her role would be in the new configuration and, as to Professor Gabra’s behaviour and his e-mail, what action would he be taking. She said she wanted to see a rebuttal of his comments at least.

[61]Professor Gabra’s reaction to the Claimant’s e-mail was to set up a crucial meeting to discuss “data management for clinical trials at the Hammersmith: a collaborative comprehensive solution”. Dr Kaczmarski plus/minus Trish Daniel representing NCRC were invited to come to the meeting together with all the other substantial players. That meeting eventually took place on 2 November 2006 with Professor Leonard in the chair. The Claimant said in evidence that she thought she had told Dr Kaczmarski on 28 September 2006 that Professor Gabra had been bullying her and that she did tell him that she was suffering from stress. She sent another e-mail about this, but can no longer find it. In that e-mail she said she was not coming into work the next day as she was unwell and self-certified herself off work for that day. When it was put to her that she did not tell Dr Kaczmarski that she was feeling stressed, she replied that “in memory” she did. The e-mail from Dr Kaczmarski the following day on 29 September 2006 shows that she had in fact discussed “personal issues with Hani” with him.

[62]Dr Kaczmarski expressed the view in this e-mail that he felt Professor Gabra was out of order in making his comments at all, let alone publicising them so widely. He said he did not know how to deal with it and would be speaking to Professor Leonard on Monday to get his advice. As to “working without walls”, he had no doubt that they needed to be full partners in Hani’s schemes. Resources would have to be devolved to the consortium and, with it, overall control, but they would then continue to have a voice at the top table which they would not have if they remained outside the project. Although it was Hani’s pet project, it would impact on all cancer work within Hammersmith Hospital and Professor Gabra would not have a monopoly say in what got support. The Claimant replied saying that she was willing to work on the Hammersmith Hospital model, that his recent e-mail was the most concrete evidence of harassment, though not the only example, and the second time in a year he had publicly denigrated her character/competence. She felt scared to defend herself as she did not know what he might do to her next.

[63]Dr Kaczmarski had agreed to meet Professor Leonard to discuss the Claimant’s situation and get his advice on 2 October 2006, but was unable to recall the meeting and there is no record of it.

October 2006

[64]On 9 October 2006 the Claimant’s father died. The Claimant took two weeks’ leave. The Claimant said in evidence that her father had been terminally ill for three years so that his death was not sudden. He became very unwell in the last week. It was the Defendant’s primary case on causation that the Claimant’s severe mental illness arose not out of any problems at work, but because of the death of her father. A witness called on behalf of the Claimant, Elizabeth Palmer, a friend who met with her every couple of months, said that she recalled the Claimant’s mother dying, but not so much her father – that had been an anticipated death. She did not recall her talking about her father’s death. Another friend called as a witness, Christine Franey, said that Trish was under a lot of stress, but so was she, with her parents ill and dying. The Claimant absolutely mentioned her father dying. It was shortly after the witness’s father had died. A close friend had also died some years earlier.

[65]When she went to see her GP on 27 February 2007 the notes record her feeling low with poor sleep, tiredness and a lot of problems. It notes that she lost her father six months ago and had ever since been low. The Claimant said in evidence that she did tell the doctor about her work problem as well, but she could not make the GP, whose mother tongue was not English, understand what she was saying, so concentrated more on her father’s death.

[66]On her return to work on 25 October 2006 the Claimant e-mailed Professor Leonard referring to the forthcoming meeting on 2 November 2006. She said that she believed that setting up a one-stop trials unit at the Hammersmith site could have implications for the Research Network as a whole as well as for her personally. As things stood, she said she was unsure about attending the meeting. “I feel I may be forced (harassed) into agreeing to something that is not necessarily in the best interests of the Research Network as a whole, and may not have been fully thought through. I feel I will be in a relatively weak bargaining position, having had my reputation tarnished (unfairly in both mine and Richard’s view)”. She said she would still like a rebuttal sent to Professor Gabra’s e-mail and that in principle she supported a more fluid way of working with NCRN staff, and would agree to them providing cross cover where required, provided accrual was on target and there was no loss of resources. The 2nd November 2006 Meeting.

[67]The Claimant did not attend the meeting which took place on 2 November and said that she told Richard Kaczmarski that she did not intend to do so. Dr Kaczmarski said in evidence that she had not done so and he did not know that she was not going to attend. The meeting discussed the pressures of work with Beate Poppinga-Scholz talking about her workload, with agreement that the Charing Cross Hospital was also under pressure. Mixed funding from NCRN and commercial funding would, it was said, take the pressure off as they would be dealt with collectively. Professor Leonard said that when he had worked in Wales with a similar fluid structure the nurse would let them know which research work they could take on and which areas were under pressure. A board was set up which would meet bi-monthly to assess trials and look for any areas to expand or eliminate trials. The advisory committee which was set up assumed the pooling of resources. Its members included Dr Kaczmarski and the Claimant as alternates.

[68]The Claimant confirmed in evidence that she was not saying in her email of 25 October 2006 to Professor Leonard that she was feeling unwell. When asked in cross-examination about this email she said that by “forced (harassed)” she thought personal harassment was a possibility by the sheer number of clinicians who wanted “working without walls”. I asked her to confirm this answer which she did. It suggests that her main concern was being forced to concede the argument by sheer weight of opposition against her stance rather than concern about being personally bullied. Her answer must be read together with the contents of her email of 25 October 2006 where she said she felt she was in a relatively weak bargaining position having had her reputation tarnished.

December 2006

[69]On 4 December 2006 the Claimant was approached in the corridor by one of the Oncology Chairs Professor Michael Seckl. She said that he raised the question of Professor Gabra’s email about her, said to her that she was being bullied and that Professor Gabra must not be allowed to behave like this; she needed to do something about it. This appears to have acted as a spur to the Claimant who thereafter became proactive.

[70]On 4 December 2006 Professor Gabra wrote to her saying it was a shame she could not make the recent meeting. The Claimant replied on 5 December 2006 stating that she did not attend the meeting because she strongly disagreed with his previous email regarding her and her organisation. The email he had sent on 4 December was the first time she had heard that someone else was to become Beate’s line manager. Although she was supportive of her taking on more responsibility locally, she could see no reason or justification for relinquishing her own position as her line manager. She expressed caution about pooling of resources without a detailed business plan. She said in evidence that she had not agreed to the rules or Beate’s role, working regardless of funding resources as Professor Gabra had suggested in his email of 4 December. She was not convinced that this was the model for going forward. She felt in shock and stress and could not go into an environment with a person present who had bullied her and humiliated her in front of the oncology teams.

[71]In fact the Claimant did not work directly with Professor Gabra again and there are no new allegations of bullying against him after December 2006. It is to be noted that, her comments on the dinner in August 2006 apart, there is no criticism of Professor Gabra’s conduct when he and the Claimant met face to face. The allegations concern what he put in emails about her and the pressures or coercion he placed upon her by the forceful and demanding manner in which he worked.

[72]The Claimant states that on the same day she sent her email of 5 December 2006 to Professor Gabra and all the oncology chairs, she emailed Human Resources to say that she was being bullied by Professor Gabra. There is no copy of this email, and no reference to any earlier email when HR opened a file upon the allegation of bullying on 16 February 2007.

[73]Although there are no further allegations of bullying it is necessary to look at the emails, particularly in December 2006, to ascertain the Claimant’s response to her work and the alleged bullying. On 9 December 2006 at 7.15pm Dr Kaczmarski wrote an email from where he was working in America, to Professor Gabra. He expressed dismay at the email which Professor Gabra had sent to the Claimant on 4 December 2006, and said that he obviously had not been explicit enough in letting him know how strongly the Claimant had felt aggrieved about the earlier stream of emails, in which she felt that she had been publicly belittled, as had the role of the WLCRN. The emphasis had become promotion of Beate over the Claimant and the sidelining of the Claimant’s views or involvement; only Dr Kaczmarski was put forward as a representative with the position of WLCRN. “As a result she feels humiliated and bullied and in this I have sympathy with her position….I am aware that other senior members of the Trust privately share this view (i.e that her position is being undermined)”. Dr Kaczmarski went on to say that he supported the model of clinical trials management which Professor Gabra champions, but it is the model upon which he and the Claimant disagreed. He conceded that the history of WLCR involvement in colorectal and gynaecological work at Hammersmith is not a glorious one, with inability to recruit and retain staff, work backlogs, poor recruitment etc. Nevertheless he felt that to a considerable degree it was also to do with the personality clash which seems to exist between the Claimant and Professor Gabra. He warned him that the formal grievance procedure was being considered by the Claimant and suggested a personal meeting. He concluded by saying that:- “..I feel a situation has arisen where a breakdown of interpersonal relationships between you and Trish not only threatens the work and goals of the WLCRN but more importantly is having a serious effect on the well-being of a member of staff for whom I have not only line-management responsibility but moreover a great deal of respect for the job she does”

[74]Dr Kaczmarski said in evidence that in writing this email he was acting in his capacity as the Claimant’s line manager. He supported the model championed by Professor Gabra, but also supported a person for whom he had line management. The email reflected the Claimant’s perception of Beate’s role, though the Claimant could not relinquish her line management functions despite the overwork that she had. He sought in the email to express it as closely and strongly as he could to put the Claimant’s case to Professor Gabra, though he agreed that he had some sympathy with her position. He did not however interpret Professor Gabra’s email of 25 September at 11.36 as amounting to bullying. It was the email of a person seeking to push through “working without walls” which the Claimant was fundamentally objecting to.

[75]Professor Gabra replied within a very short while on the same day expressing surprise at that assessment. He said that he was astounded that Dr Kaczmarski was dismayed by the positive email he had sent the Claimant on 4 December 2006. He states:- “1. In all our conversations I have been explicit with you that there was no personality issue on my part with Trish, I am just keen to have a single framework for the Hammersmith units. 2. Trish has hallmarked herself by making decisions and then reversing them creating chaos in my clinical trials program. In my emails I said it like it was, not to humiliate her, and was a response to an emotionally unaware email that she sent asking me to stop recruiting patients into a trial that I was providing the data management for. 3. You came to an open meeting and made an agreement with all parties, you now seem to be saying that you disagree. 4. Your comments about senior people are very interesting… they have told me just the opposite and privately they say they agree with my need to get some clarity in clinical trials. 5. Perhaps I should take an approach with human resources myself, because your email appears to be quite the reverse of what you personally expressed to me, and this email should probably have been put in a phonecall, but you have written it. 6. I am of course very prepared to resolve this informally, but will not be dictated to or bullied, because this impression that Trish has is unilateral and not expressed on my part in any way that has not been expressed by you also; and I will have a strong fully functioning clinical trials unit at Hammersmith.”

[76]Immediately after writing this email to Dr Kaczmarski Professor Gabra sent an email to the Claimant containing an apology and setting out his position. It reads as follows:- “Dear Trish, Charles, Rob and Richard have all expressed to me how upset you are about the recent email exchanges. Let me for the record be clear. I have absolutely no personality issues with you whatsoever and as you know we have had actually pretty good face to face meetings generally. I was really surprised that you did not come to the recent meeting that Bob chaired on trials. I am very happy to work with you closely, and of course in the same way your remit is to address WLCRN issues, I am in charge of the strategy for cancer for Imperial College and have to deliver on this. On point of Beate, I am not trying to bypass you. She does a different job, Richard suggested Sarah Blagden to manage her interaction with the committee, not me… No-one suggested that you were not her line manager while she remains an WLCRN employee. However the new structure demands a non-partisan approach and in this regard you have been invited to sit on the management committee with the other senior people rather than prioritise WLCRN issues in a direct line management position. WLCRN is only one partner in clinical trials, and it is important that you understand from the Imperial’s perspective that we want a single structure. This is not a personality issue, it is an important strategy for the future. On the point of you feeling upset that I belittled you let me say that if you did feel that way it was not my intention and I am unreservedly sorry if that was what came over. The purpose was to communicate as the strategic theme leader that things are not working and that we need a different mechanism. I am very dissatisfied about the way things have not been working properly on the Hammersmith site. That is not a personality issue. It is a fact and it needs to be stated and addressed. All of us as senior people agree that things need to change in trials. It is actually my job as strategic theme leader for cancer to provide a strategy for clinical trials. WLCRN is an important part, with only a part of that, and I hope you will appreciate this. In the spirit of moving on, I am absolutely delighted to meet with you, Robert, Bob and Charles and find an informal way of resolving your professional issues and the WLCRN own views. I am a reasonable person and genuinely want clinical trials to work fantastically well at Imperial. This is the top and bottom of my perspective and what I am trying to achieve. Hammersmith is an exciting place to be, and the team spirit is high. My aim is for excellence and fun here, and I intend to deliver this. I hope that you wish to be a part of that too, and if you do then I am happy to re-engage with you fully.”

[77]The Claimant said in evidence that the apology was not enough for what had been done. It was not just his email, but his “at war with the NCRN” “Trish let go Hammersmith” and other such matters from 2004 onwards. In her mind, the Claimant said it had been going on for several years.

[78]Initially the Claimant said that Professor Gabra’s unreserved apology was insufficient in part because it was confidential and not circulated to the same people to whom his offending email had been sent. This however turned out not to be so. Although the email was marked confidential copies were in fact not only sent to Dr Kaczmarski but also to Professor Coombes and Professor Leonard.

[79]On 10 December 2006 Professor Gabra sent his further thoughts to Dr Kaczmarski. It is an aggrieved, tough email. He states that if Dr Kaczmarski could not progress anything in the NCRN without the Claimant agreeing to it, rather than her understanding that the strategy at Hammersmith has failed, (which it had comprehensibly) then, “we also need to ask some serious questions of you.” He sent his email not publicly but to the people who knew to be aware that something radical had to change. He had several emails from people who had received a copy of the Claimant’s email of 25 September saying how unfortunate her use of language was. He stated that he was not bullying the Claimant as Dr Kaczmarski knew very well. The Claimant was not a good strategist and her policy of stop/go with trials at Hammersmith did not work. He said he would not be deflected from doing the right thing and neither should Dr Kaczmarski. He expressed the view that it was the Claimant who was trying to bully him with threats of going to HR Lawyers into having the Hammersmith failed strategy continue. The Claimant did not include Professor Gabra in the email she sent to Professor Leonard and Professor Coombes stating that Professor Gabra should be excluded from phase 2/3. She was therefore conducting strategy on the hoof without discussing it with Dr Kaczmarski.

[80]It was submitted on the Claimant’s behalf that this demonstrated that Professor Gabra was also bullying Dr Kaczmarski. Dr Kaczmarski did not accept this. Professor Gabra was not a threat to him as he had no authority or influence over him at all. The same was true of the Claimant. Both she and Professor Gabra had different roles and responsibilities. The Claimant had control of NCRN funds and Professor Gabra had no control over that. Neither had control over the other and each could make life difficult for the other. One of the strengths of WLCRN was that they were outside the Imperial and could act independently. Professor Gabra had no way of threatening or intimidating Dr Kaczmarski who said he had then and has now a very good professional relationship with him.

[81]In December 2006 the Claimant said that she attended an NCRN National meeting. She raised her concerns about being pressured to hand over her resources and the implications for her role. She states in her witness statement that the overwhelming response was that she should not be forced to use NCRN resources to support non-NCRN trials. She also told the Associate Director that she was being bullied over this matter. No witness was called about this meeting nor any witness statement served. There are no documents. It is difficult to assess how much weight to give to this evidence when the views of the National Managers ran counter to the general support for “working without walls” and hence the pooling of resources which Professor Richard Kaplan had supported at the meeting of 15 June 2006. I accept Dr Kaczmarski’s evidence that this was the general direction of travel of the NCRN even though it took some years for it became fully operational. It may be that some of the National Managers were expressing their sympathy for the Claimant’s views even though they were aware that the general approach of the NCRN was in support of the concept of pooling of resources.

[82]The Associate Director suggested that she drafted a document which outlined the issues and what the WLCRN wanted. When she discussed this with Dr Kaczmarski, he said that he would do it. When he did produce his document, the Claimant did not agree with it at all.

[83]On 11 December the Claimant spoke to Jan Beynon, the General Manager for Cancer Services at Hammersmith Hospital NHS Trust. She told her that she believed Professor Gabra intended to oust her from the PCT and had asked her to “let go of the Hammersmith”, which Jan Beynon said she thought was constructive dismissal and that his bullying behaviour was creating an unacceptable work environment for her. She advised that she speak to the Assistant Director of HR at Hammersmith, Dawn Morris. It is said that Jan Beynon was concerned about the Claimant and spoke to Professor Leonard about it. Neither Jan Beynon, nor Dawn Morris, nor Professor Leonard was called on behalf of the Claimant and there is no documentation relating to this.

[84]On 18 December 2006 the Claimant wrote to Dr Kaczmarski thanking him for showing her the letter that he had written to Professor Gabra on 9 December 2006. She felt that it was a strong message of support from him and made an enormous difference. In this e-mail the Claimant states that the achievements of NCRN at Hammersmith had been down-played and set out her views on what the real problems had been. She stated that the risks of the new model were understated and they needed to address those by putting forward a clearer idea of how they would want management to work. She concluded by saying that she was concerned that the model would lead to defragmentation of the Network and that the progress that had been made would be lost. This e-mail shows the Claimant putting forward her views about the new model clearly and forcefully, displaying her continued fundamental objections to it.

[85]Dr Kaczmarski replied stating that he had spoken to Professor Gabra who was not as “pissed off with me as I thought he would be”. Dr Kaczmarski had told Professor Gabra of the mixed messages coming from NCRN which they were trying to clarify and Professor Gabra said he could speak to his mate, Professor David Cameron. This evoked a strong response from the Claimant, the same day, saying it would be a disaster if Professor Gabra started attempting to sway the new director over Hammersmith. She added:

“Try as I might I am unable to support the model in which Beate remains NCRN funded, moves to the management role, and reports to someone else in HH. If the post is NCRN funded it should be NCRN managed (though this doesn’t have to by me)”

. The other issues she described as decision-making proportionate to resources, transparency around income, and “share in profits”. Dr Kaczmarski said in evidence that he did not go around trying to upset people, but recognised that Professor Gabra could have been “pissed off” by the e-mail he sent on 9 December 2006. It was, however, written so as not to destroy working relationships, recognising that he had responsibilities to both the Claimant and to the Network.

[86]On 21 December 2006 the Claimant sent an e-mail to the Associate Director of HR at Hammersmith about Professor Gabra’s behaviour and was told to contact her in the New Year. There is no copy of this e-mail. The Claimant told Dr Kaczmarski that she was feeling very stressed and regarded what had happened about Beate Poppinga-Scholz and the Hammersmith as constructive dismissal. She said she would be taking HR and legal advice.

[87]After the Christmas holiday the Claimant went to see a Consultant Respiratory Physician, Dr Frances Bowen, who formed the view that, in addition to a chest condition, the Claimant was depressed, precipitated by stress at work. The Claimant was not keen to talk to her GP about it or to contemplate anti-depressants or to seek expert help. Dr Bowen contacted the GP on the telephone and wrote to him on 1 March 2007 to inform him of her opinion.

[88]The Claimant was signed off sick for 2 weeks on 15 January. Before she left work, she wrote to Dr Kaczmarski on 19 January 2007 asking him to arrange a meeting with Professor Gabra and Jan Beynon. Dr Kaczmarski replied on the same day (contrary to the position as set out in the chronology) agreeing that a meeting with Professor Gabra was a good idea. The attendees for that meeting could not be agreed and it never took place.

[89]On the same date the Claimant wrote another e-mail to Dr Kaczmarski saying that everything seemed to be okay at work and that she was on top of all the essential things. She gave him an update on the way ahead and ended by stating that she had been signed off by Dr Frances Bowen for 2 weeks “with a chest infection”. She said that she would be there at work until mid-afternoon if he needed to speak to her. It is notable that in this e-mail the Claimant does not refer to her mental health, but told Dr Kaczmarski that the sole reason for her taking time off work was her chest condition. She said in evidence that she did not tell Dr Kaczmarski about the fact that Dr Bowen had found her to be depressed as well, because she was worried about showing any sign of weakness at all. She did not feel that he would be particularly sympathetic. When she told Dr Kaczmarski that she was away unwell she said she had a black tongue to which he said …“in the middle ages ….”. She thought that this showed flippancy and a lack of concern, even ridicule, and not what she expected from a line manager and physician. This conversation is denied by Dr Kaczmarski.

[90]The Claimant returned to work at the end of January and told Professor Gabra that he could do what he wished with NCRN resources and start afresh. She suggested a meeting with him and Dr Kaczmarski and he replied “Yes, fab”.

[91]The Claimant told me in evidence that by 16 February she felt extremely unwell due to work stress and had been up all night with palpitations. She telephoned Dr Kaczmarski who said that this might be due to the antibiotics. She said that she felt unsupported as a consequence. Dr Kaczmarski does not accept that this conversation took place or that he made any reference to antibiotics, something which, as a doctor, he would not have done. The Claimant contends that Beate Poppinga-Scholz went off sick in mid-February also with stress as she felt bullied by both Professor Gabra and Dr Manger. I have not heard from Beate Poppinga-Scholz in evidence nor are there any documents about the circumstances of her departure. It is in fact unclear as to the reason for her resignation, though it was attributed to a recurrence of maleria.

[92]On 16 February 2007 the Claimant telephoned HR and expressed an intention to resign due to what she described as persistent bullying behaviour by Professor Gabra. She was persuaded not to resign, but to address the issue using the Dignity at Work policy. The agreed action was for the Claimant to agree to an informal process and be advised on how to go about using the formal process. The Claimant also spoke to work colleagues that day, one of whom, Clare Showden, spoke to Professor Coombes who discussed the Claimant’s situation with Dr Kaczmarski. When she contacted HR, the Claimant complained of bullying alone and made no reference to overwork. She said in evidence that she found the job stressful and the bullying was more than she could cope with at that time. It was very difficult, but she tried to be professional until she was at breaking point.

[93]On 27 February 2007 the Claimant went to see her general practitioner. The note records that she was:

“Feeling low with poor sleep, tiredness and has a lot of problems. Lost her father 6/12 ago and ever since has been low. Denies any suicidal ideation”

. The Claimant said that she had told the GP that her job was in tatters, but he did not pick up that reference so she told him about her father dying and he majored on that. In fact she said that she did not recall making an association of her father dying and feeling low as he had been very unwell for 3 years and, in a sense, his death was a relief. She did not believe she was having a grief reaction 6 months after his death. She thought that as the GP did not have English as his mother tongue, he had not understood what she was saying about her job being in tatters and had, therefore, made no note about that. She was signed off work for 4 weeks.

[94]The Claimant attended a meeting on 22 February 2007 with the Human Resources Manager. She expressed to him her fear of being victimised if she decided to take formal action, but that because of the adverse effects the issues are having on her she needed to do something about it. She was advised of the options of an informal process of pursuing her complaint by a meeting, or a formal process in writing to her manager which would then be formally investigated and addressed. The Claimant selected the informal process.

[95]On 28 February 2007 the Claimant reported Professor Gabra for engaging an employee in his clinic without having a Trust contract in place. She said she was very concerned about this, especially since it was clearly not an oversight. Professor Gabra replied that her assertion was incorrect because the employee did have an honorary contract with the Trust in place. He was concerned about her approach.

[96]The Claimant was signed off work again for 4 weeks with “debility”. On 30 March she was examined by a consultant psychiatrist, Dr Tom Stevens, who diagnosed a severe depressive episode and serious suicidal ideation with a significant past history of psychiatric contact; he made a suggested diagnosis of mood disorder. He noted that she located the recent problems entirely in an experience of bullying at work. She described feelings of hopelessness and had lost a stone over the past 4 months. She told Dr Stevens that she had felt increasingly denigrated since October 2006.

[97]After this, her condition deteriorated further and on 14 April 2007 she was admitted to a private psychiatric hospital, but discharged herself. On 13 June 2007 she was signed off by her GP for a further 6 weeks with depression and remained off work until she returned in August 2007.

[98]On her return to work after her psychiatric breakdown, no written risk assessment was produced, but Dr Kaczmarski sets out in his witness statement the steps which were taken to ensure a safe and proper return. The Claimant felt that, as Human Resources had discussed redeployment or changed management and due process for her, she was not being given a full opportunity to make a successful return to her work. She also felt that Occupational Health should have been involved in September 2006 rather than at the stage of her return to work. She had a pre-return to work meeting with Dr Kaczmarski and the Human Resources Manager, Afusat Abdulkadir-Ayo, on 23 July 2007 when her return to work and how it was to be managed was discussed.

[99]Shortly after she returned to work, she was asked by HR about how she wanted to proceed with her grievance. The Claimant decided that she did not in fact want to proceed because of the stress that that would cause her.

[100]Dr Kaczmarski states in his witness statement that included in the work adjustments for the Claimant’s return to work were a phased return to work to which the Claimant objected, regular reviews with Occupational Health, removal of all contact between Professor Gabra and the Claimant, a retention of the Acting Network Manager, James Frost, to assist the Claimant’s return to work, and attendance at regular meetings so that she did not feel undermined or isolated. The possibility of a secondment was discussed with her, but rejected as being likely to be counter-productive.

[101]James Frost had been appointed as Acting Network manager whilst the Claimant was on sick leave. On her return, it was intended that he would remain in post until she was working up to full-time, having started on three half days a week. The Claimant found this very difficult as it was not clear who was in charge; there was a duplication of roles and she felt that they were in competition for the job. Although Dr Kaczmarski would have wished to have retained James Frost as an employee, he was in fact released as the Claimant felt undermined by him being there.

[102]There was also, Dr Kaczmarski said, a problem with the Claimant’s attendance at monthly meetings. She was not invited to attend all of them as other members of staff, Dr Kaczmarski said, had stated concerns that they had about the Claimant’s management style and her treatment of colleagues. She was considered to be a negative influence within the office environment and some people stated how they disliked her management style. Dr Kaczmarski did not feel able to invite her to attend all the meetings because of this.

[103]The Claimant went on sick leave again because of depression in October 2007 and returned to work again in November 2007. She felt undermined by being excluded from some staff meetings and became depressed again. A secondment was felt appropriate on this occasion and this was run by the University of Leeds. It did not work, however, and in July 2008 the Claimant relapsed again and left work. In March 2009 she took ill health retirement.

The demands of the Claimant’s work

[104]When the Claimant set up the WLCRN with the help of Dr Kaczmarski, it was an extremely successful and no doubt highly rewarding project and commencement to her employment. She deserves, and was given by Dr Kaczmarski, considerable credit for this achievement. Clearly, as the Network became more established, the workload increased and a lead nurse was engaged. When the lead nurse left the Defendant’s employment in October 2005 and the Claimant took on her role as well, her workload increased significantly. It is not possible to determine on the evidence how much her workload actually increased, but it clearly involved more hours and more demands upon her. It can be seen from her e-mail about the need for a lease car of 19 May 2006 that she worked outside normal hours frequently with early starts and late finishes and, on occasions, came into the office to work at the weekend. It is, however, typical in the NHS that some employees work very long hours doing demanding jobs. The same would be equally true of Dr Kaczmarski, the professors and consultants working on the Network as it would of the Claimant, even though it is not possible to make a direct comparison of hours. The culture in the Health Service is one of demanding hard work. When Professor Gabra described the environment as being extremely tough, intellectually, emotionally and punctually, there is no reason to suppose that he was exaggerating.

[105]The Claimant’s remuneration was commensurate with her increased workload. Dr Kaczmarski thought that she was the highest paid employee working in her capacity in the NHS in the UK. Mr Buchan is right in his submission that an excessive workload remains an excessive workload whatever the pay, but high pay may have been a factor in why the Claimant continued to carry out her increased workload after the lead nurse retired, without complaint.

[106]It is not disputed that it was very difficult to recruit suitably qualified lead nurses and that the Defendant, with the Claimant’s assistance, had sought to engage a suitably qualified person without success. It was also the Claimant’s oral evidence that she did not at any time complain about doing the lead nurse’s job to HR.

The Claimant’s condition, and how it progressed

[107]The background against which the Claimant’s eventual condition developed requiring in-patient treatment in April 2007, is set out in the medical reports from Dr Turner for the Claimant and Professor Fahy for the Defendant, together with their oral evidence. There is no dispute that the Claimant suffered from a bipolar disorder which is a condition with a high recurrence. They agreed that there was in fact a 90% probability of recurrence and that recurrence does not require a triggering event as the illness may have come from pressures generated internally. Adverse events, however, could often be a trigger.

[108]Professor Fahy described the condition as fairly acute in its onset, the Claimant going from being able to carry out her job to being incapacitated in a psychiatric unit in a short period of time. He said this was not “a half hearted condition”. Initially, the medical experts took a different view as to the development of her condition. Dr Turner was of the view that occupational stress was more likely to have played a more significant part in the development of her condition than the death of her father because the stress pre-dated the latter’s death. He said that all three factors, her perception of bullying, overwork and bereavement probably contributed.

[109]Professor Fahy started with the view that the death of her father may have been the most important element and, according to the GP’s notes of 27 February 2007, she herself dated the development of her condition to her father’s death. See also Dr Steven’s report of 30 March 2007. Neither of the medical experts, however, had been aware of the visit to Dr Frances Bowen which made it clear that in mid-January 2007, i.e. before the visit to the GP on 27 February 2007, that the Claimant was clearly complaining of work stress and Dr Bowen concluded that she was suffering from depression as a result of incidents at work. After cross-examination and questions from the Court, Professor Farhy said that all three postulated triggers of, perception of bullying, overwork and bereavement were probably causative, though with bipolar disorder episodes of illness often came out of the blue.

[110]The Claimant’s first complaint about bullying was when, in 2004, she said that she felt she had been bullied into allowing Adeaze Muoma to work on the second commercial trial by Professor Gabra, discussed this situation with Dr Kaczmarski and went to Leeds to see the Assistant National Director of the NCRN, Nancy Lester. There is no complaint of stress and the discussion with Nancy Lester, from the Claimant’s account, seems to have turned on the extent to which NCRN resources could be used for other than NHS purposes; hence the discussion of “knock for knock”. Had the discussion been regarded by Nancy Lester as a complaint about the Claimant’s personal situation, it would be surprising for no record to be taken of it or a follow-up letter or e-mail.

[111]In November 2005 the Claimant records the event when Professor Gabra sent an e-mail stating “Trish Daniel is damaging my research programme at the Hammersmith”. A copy of this is not available and there is no record of any complaint being made to Dr Kaczmarski about it at the time.

[112]On 2 February 2006 the Claimant asked Professor Gabra to consider not recruiting new patients for the moment and prepared a report dated 3 February 2006 stating that the Network staff were working to capacity. The Claimant said in evidence that this was the first occasion in which she had asked Professor Gabra not to recruit which, the Claimant says, he had been doing since January 2006 at an unusually high rate.

[113]The Claimant went to see Professor Coombes as she said that Dr Kaczmarski did nothing and Professor Coombes intervened and stopped Professor Gabra from recruiting. At about this time in early 2006 the Claimant felt snowed under by her work stating that other comparable sized Networks had a lead nurse plus an administrator or PA. She spoke to Dr Kaczmarski about this and an administrator was brought in for about a year, though she did not recall exactly when. The Claimant’s witness statement does not contain any reference to a complaint about her health at that time, though she said in evidence that she did complain to Dr Kaczmarski about having insomnia and that he simply rolled his eyes and turned away, so she gave up when he asked how she was feeling. Dr Kaczmarski denies this complaint was made.

[114]After Professor Gabra’s second e-mail of 25 September 2006 at 11:36, the Claimant reported Professor Gabra to Professor Leonard for bullying. Dr Kaczmarski said in evidence that he was not contacted by Professor Leonard or told about this. He was, however, clearly involved at the request of the Claimant himself when, on the Claimant’s behalf, he spoke to Professor Gabra and, amongst other things, asked him whether he had an agenda to oust the Claimant, which he denied. The following day, 28 September 2006, the Claimant e-mailed Dr Kaczmarski asking him to clarify Professor Gabra’s behaviour to her and his e-mail. She wanted to know what action he was taking and said she would like to see a rebuttal of his comments at least. In his e-mail reply of 29 September 2006, Dr Kaczmarski said that he considered that Professor Gabra was out of order in making his comments, let alone publicising them so widely. He did not know how best to deal with it, but would be speaking to Professor Leonard.

[115]The Claimant states in her e-mail of 30 September 2006 that Professor Gabra’s recent e-mail is the most concrete evidence of harassment, though not the only example, being the second time in a year he had publicly denigrated her character/competence. She makes it clear that she regards this matter seriously and wants a rebuttal. She said in evidence that she told Dr Kaczmarski that she was feeling unwell from stress at this time and would not be working the next day. He does not recollect this, and when it was put to the Claimant in cross-examination that she did not tell him she was feeling stressed, she replied that in her memory she did. In a similar vein, in relation to the complaint about insomnia, fatigue and feeling low in early 2006, she said in evidence that she believed that she had spoken to Dr Kaczmarski about this, but was not sure whether she had said it was caused by her work.

[116]It is clear from the e-mail of 30 September 2006 that the Claimant was making a complaint of harassment about Professor Gabra, particularly his e-mail of 25 September 2006 at 11:36, and said that she was scared to defend herself. She did not complain of ill health or stress.

[117]The Claimant’s father died on 9 October 2006 and she took two weeks’ leave. On her return she wrote to Professor Leonard on 25 October 2006, saying that she was not sure about attending the forthcoming meeting on 2 November as she felt she might be forced (harassed) into agreeing to something that was not necessarily in the best interests of the Research Network at a whole and may not have been fully thought through. She felt in a weak bargaining position, having had her reputation tarnished and wanted a rebuttal sent.

[118]Professor Leonard did not reply to the Claimant’s email of 25 October 2006. The Data Management Meeting took place on 2 November 2006 without the attendance of the Claimant. She said that she considered personal harassment a possibility, had she gone to the meeting, by the sheer number of clinicians who wanted “working without walls”. She agreed in evidence that at that time she was not in any email complaining about her health.

[119]When the Claimant was approached by Professor Michael Seckl and told by him that she was being bullied by Professor Gabra and that he should not be allowed to behave like that, she became more proactive. She states in her witness statement that she emailed the HR Manager of Cancer Services at the Hammersmith to say that she was being bullied, though there is no record of this. She also met Professor Coombs on 6 December to ask if Professor Gabra had a plan to oust her, but was told this was not the case, although he thought she had been very badly treated.

[120]By 9 December 2006 she said that she was feeling stressed, losing weight and not sleeping well. She told Dr Kaczmarski about this. He accepted that before he sent his email of 9 December 2006 from the USA to Professor Gabra, the Claimant had very possibly said that her health was being affected. In cross-examination Dr Kaczmarski said that by his reference to “a serious effect on the wellbeing” of the Claimant in his email of 9 December 2006 he was not saying that the Claimant was visibly ill, nor had he seen any behavioural change. It was based on what she had said to him, reflecting her account as to how she felt about her working environment as well as her personal one.

[121]The apology which Professor Gabra sent to the Claimant in response to the email from Dr Kaczmarski on 9 December 2006 was not accepted by the Claimant. She said that it was inadequate to deal with the circumstances.

[122]When the Claimant attended the NCRN national meeting in December 2006, she discussed the issue of using NCRN resources to support non-NCRN trials. She says she told the Associate Director that she was being bullied; and he suggested the draft document outlining the issues and what the WLCRN wanted. Dr Kaczmarski then wrote a report which the Claimant did not agree with. There is not copy of that report, but it is clear from the evidence that both the request and the report dealt with the issue of NCRN resources and not the Claimant’s condition.

[123]On 11 December 2006 the Claimant spoke informally to Jan Benyon, the General Manager for Cancer Services at the Hammersmith Hospitals Trust, who on hearing the Claimant’s account said that she thought that Professor Gabra’s behaviour might amount to constructive dismissal and his bullying behaviour was unacceptable in the work environment. She recommended that the Claimant speak to Dawn Morris, the Assistant Director of HR at the Hammersmith Hospital. It is said that Jan Benyon spoke to Professor Leonard and told him that she appeared very distressed. The Claimant said in evidence that when she spoke to Dawn Morris she was told she needed to write a statement and was given a helpline for bullying and harassment. She said she sent a form in February 2007, though no copy is with the papers. She did ring the helpline but the person was so confrontational that she didn’t call again.

[124]The Claimant’s email of 18 December 2006 thanks Dr Kaczmarski for his strong message of support in his letter of 9 December 2006 and stated that it made an enormous difference. She then deals with the problems concerning the network. These emails make no reference to her health.

[125]After Christmas the Claimant was diagnosed as having chronic hyperventilation syndrome and was also found by Dr Bowen to be clinically depressed. As stated above in this judgment, the Claimant reported to Dr Kaczmarski that she was off work because of a chest condition and made no mention of the finding by the respiratory physician of clinical depression due to work, as she feared appearing weak if she did so.

[126]Although the Claimant was not sleeping well, tired and feeling low, in February 2007 she remained at work, writing, for example, the strong email to Professor Gabra alleging that he had been engaging an employee in his clinic without having a Trust contract in place, in her email of 28 February 2007.

[127]On 27 February 2007 she was signed off work by her GP with debility.

[128]The Claimant’s condition was also described by the various witnesses she called on her behalf. The witnesses were friends, or former work colleagues or both. Kate Williams was a former colleague of the Claimant’s, having worked for her as data manager at WLCRN in 2002. She described the Claimant as always calm under pressure with a temperament which was unvaryingly stable. The Claimant referred to being continually pulled between different interests and the overall aim of the WLCRN. She could see that the Claimant was overworked by the hours that she was putting in, but she was always very professional and did not complain in front of any of her team. In oral evidence she described the Claimant as a strong leader who held the team together well. She did not complain about tiredness but in February 2007 it was obvious that she was tired at that time. She could not really remember whether she had seen the Claimant tired before February, but maybe she had at the end of September 2006 or around that time.

[129]Christine Franey worked with the Claimant at Charing Cross Hospital. She saw less of the Claimant during 2006 as the Claimant would cancel meetings. She said the Claimant seemed depressed and was stressed. The Claimant certainly mentioned her father dying; this happened shortly after her own father had died.

[130]Mark Langley-Sowter was a friend of the Claimant’s from 2005 who was brought in as a contractor to advise on strategy for development of the WLCRN. He was there in that capacity between about August 2007 and March 2008. He thought that the whole department suffered from low morale, including the Claimant. He described Dr Kaczmarski as “weak”, giving as an example that he did not attend Mr Langley-Sowter’s second workshop. He said when the Claimant was suffering from work related problems in 2007 she put on weight and became very unhappy. This witness said that he did not advise the Claimant to seek medical advice at any time. He could not remember doing so.

[131]Catherine Hughes was the WLCRN lead nurse until she left in October 2005. She described difficulties between the senior clinicians over the allocation of funding and available resources. The Claimant resisted Professor Gabra’s attempts to divert taxpayer-funded WLCRN resources towards his commercial purposes. She described the Claimant as becoming increasingly unwell with the stress of the job after she left the WLCRN in October 2005. The Claimant called her from the hospital by telephone in early April 2007 and Catherine Hughes then became aware that she needed medical help, though she was already receiving it by then. They had had conversations about symptoms, menopause and sleeping problems before April 2007, but nothing more than that. She had had dealings with Dr Kaczmarski and always found him very helpful and knowledgeable. He was always helpful to her and supportive to the network.

[132]Michael Stuart said in oral evidence that the Claimant would say things which would worry him about her mental state. This was particularly during 2007, shortly before her admission to hospital. He did not advise her to seek medical advice but left it to her.

[133]Elizabeth Palmer worked with the Claimant at St Mary’s Hospital and, after she left, met up with her every couple of months or so. In July 2006 she had been a great help at her mother’s 70th birthday party. The Claimant told her that she was finding it upsetting and stressful at work, but Elizabeth Palmer didn’t think of it in terms of the Claimant becoming ill. The Claimant became more withdrawn. They spoke about the September emails. Eventually she became reluctant to talk to the Claimant as it made her feel low to do so.

The law

[134]It is accepted that the principles relating to liability for work-related stress are well established by Hatton v Sutherland

[2002] ICR 613

and Barber v Somerset County Council [2004] 2 AER 385 and

[2004] UKHL 13

[135]There has, as Mr Buchan on behalf of the Claimant submits, been significant detailed guidance published by the Health and Safety Executive on occupational stress, since 2002, dealing with both risk assessment and risk factors. The risk factors are culture, namely the organisation and how it approaches work-related stress; demands, such as workload; control, namely how much say the person has in the way they do their work; relationships, covering issues such as bullying and harassment; change, namely how organisational change is managed and communicated; role, namely whether the individual understands their role in the organisation and conflicting roles are avoided; and lastly support, namely training and factors unique to the individual.

[136]These publications are of great value to employers in making themselves aware not only of the risk of stress but also of how it might develop. Increased knowledge through guidance of this kind will also inform the courts in applying the relevant tests, but the essential questions which must be answered remain those which are set out in Hatton and Barber. There is, as Lady Justice Hale (as she then was) said in Hatton at para 25, a single test for determining liability in occupational stress cases, namely:- “ … whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components:(1) an injury to health; which

(2) is attributable to stress at work. The answer to the foreseeability question will therefore depend upon the interrelationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him.”

[137]The Court of Appeal in Hatton answered the question of how strong should the indications that harm was foreseeable in a particular case be before the employer had a duty to act as follows in para 31:- “Mr Hogarth argued that only ‘clear and unequivocal’ signs of an impending breakdown should suffice. That may be putting it too high. But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health the indications must be plain enough for any reasonable employer to realise that he should do something about it.”

[138]It is the indications of impending breakdown, not stress itself, which establish a claim. Unless foreseeable mental injury to health is established the claim will not succeed. Hatton para 31 and Hartman v South Essex NHS Trust

[2005] ICR 782

para 2.

[139]Once a duty is established the employer has to act with reasonable care. What is reasonable depends upon:- “ … the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk.” [Hatton para 32]

[140]Finally a claimant must establish that the foreseeable mental injury or psychiatric condition was caused by the breach of duty on the part of the Defendant.

[141]Occupational stress cases are fact-sensitive and require particular care in determination. The inherent problem involved in considering such cases was described by Lord Justice Brown in Garrett v Camden LBC

[2001] EWCA Civ 395

, cited with approval in both Hatton at para 22 and Hartman. Lord Justice Brown said:- “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 situations: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless however, there was a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and they ought properly to have averted, there can be no liability.”

[142]There is no definition of “bullying” in the authorities, though some help can be gained from the two following cases. In Waters v Commissioner of Police [2000] 4 AER 934 at page 943E Lord Hutton said:- “It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers.”

[143]In H v Isle of Wight Council (QBD 23.2.01) Mr Justice Wright said:- “The criterion for what does or does not amount to bullying in any given circumstances is not to be judged solely by the subjective perception of the victim himself, but involves an objective assessment of the observed behaviour taken in conjunction with any apparent vulnerability in the target of the behaviour complained of.”

[144]ACAS give the following definition:- “Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure.”

[145]The Claimant referred to harassment by Professor Gabra in her email of 30 September 2006 but on other occasions refers to his conduct as bullying. When considering allegations of harassment under the Protection from Harassment Act 1997 Lord Nicholls in Majrowski v Guys and St Thomas’s NHS Trust [2007] 1 AC said that the courts had to distinguish between conduct which is “unattractive, even unreasonable, and conduct which is oppressive and unacceptable”. In the same case Baroness Hale said that all sorts of conduct may amount to harassment and “a great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour”.

[146]It has to be borne in mind that harassment under the Act is a criminal matter whereas bullying is not. Nevertheless, taking into account the various definitions and dicta upon bullying and by analogy to harassment, I am satisfied that for bullying to be established the conduct must be genuinely offensive and unacceptable, examples of which may be intimidating, malicious or insulting behaviour intended to undermine, humiliate or denigrate.

The issues

[147]The principal issues are whether there was a foreseeable risk that the Claimant would suffer injury to her mental health arising out of stress at work, and whether impending harm to her health arising from that stress was plain enough for any reasonable employer to realise that he must do something about it.

[148]The Claimant’s case is that her psychiatric condition was brought about by bullying by Professor Gabra and overwork, or a combination of the two. Mr Buchan submitted that what should be considered was workload, pressures caused by the conflict with Professor Gabra, lack of support from Dr Kaczmarski and stressful work.

[149]I propose to consider, firstly, the conduct complained of by the Claimant; secondly, whether such conduct caused occupational stress; thirdly, what were the indications of impending mental injury and whether they were plain enough for the Defendant to realise that he should do something about it; fourthly, if a duty of care did arise, whether there was a breach; fifthly, if there was a breach of duty, has the Claimant established that the breach caused the mental injury.

The findings

[150]The trial had had to be adjourned because the Claimant had become too unwell to be able to give evidence. When she gave her evidence, it was in a manner which demonstrated her intelligence and determination. Although there were periods when the strain of giving evidence caused her to seek short breaks, I was left with the strong overall impression that, as Kate Williams had said in oral evidence, she was well able to hold her own and a strong leader who would hold a team together well. I formed the view from her evidence before me, making allowances for her recent illness, that she would have been well able to hold her own in any dispute during the time of her employment with the Defendant, except at the latter stages in 2007 before she went off sick. The emails she wrote to Dr Kaczmarski and Professor Gabra throughout, and even into 2007, also supported this view. She sought on all occasions to maintain professional relationships with her colleagues, including Professor Gabra. She succeeded in this, but it was done at a cost; it caused her to be determined not to show any weakness or let her colleagues see the fact that she was stressed.

[151]Her evidence was in parts uncertain in recollection. Thus she said she believed she had spoken to Dr Kaczmarski in early 2006 about insomnia, fatigue and feeling low, but wasn’t sure if she had mentioned that any such problems were work-related. She said she thought that she had told Professor Leonard that Professor Gabra was bullying her and she used such phrases as “in my memory I did”. It was my view that there were elements of reconstruction and hindsight about her evidence which demonstrated the need to look carefully at the contemporaneous documents.

[152]Dr Kaczmarski’s evidence was clear, and like the Claimant’s truthful, though he too had areas of lack of recollection. He worked on the same site and with the Claimant only on one half-day a week, but was in regular contact with her both by email and telephone. I am satisfied that he is right in saying that the Claimant chose to keep him as line manager rather than move to a director of NCRN.

[153]I have already mentioned in this judgment the difficulty that the court faced with the lack of evidence, particularly that of Professor Gabra, though also in the number of witnesses of whom the Claimant gave hearsay accounts without those witnesses being called or without there being any supporting documentation. As there was no complaint about any of the meetings between Professor Gabra and the Claimant, apart from one occasion when they had dinner together with Beate Poppinga-Scholtz, much of the dispute between them is set out in the emails. I turn now to the specific issues to be considered:- (1).

(a) Bullying

[154]There is no doubt that cancer research is a demanding, high profile part of the NHS. As Dr Kaczmarski said, Imperial is one of the highest pressured institutions in the country and the academic oncologists are ambitious people wanting to pursue their own agendas and always wanting more resources than those which were available. The evidence establishes that Professor Gabra was a highly motivated man with a powerful desire and drive to further cancer research in the UK. As Mr Buchan described in opening, he is a world-renowned professor whose research is acclaimed and nothing that was said about him in this case will alter that.

[155]It is clear that Professor Gabra was dissatisfied with the service that he was getting from WLCRN and ready to criticise members of staff where he thought such criticism was appropriate and due. He did so in direct terms, though he was clearly also enthusiastic and encouraging when he considered that things were going well.

[156]The dispute which developed between him and the Claimant was of a fundamental nature. Professor Gabra wanted to establish the concept of “working without walls” so that resources for cancer research were pooled with both commercial organisations and the NHS contributing to the pool. The Claimant was strongly opposed to “working without walls” and felt that the NHS resources should be kept distinct and separate and not pooled. The evidence was clear that the Claimant and Professor Gabra each held strong views on this matter and, as Mr Andrew Warnock QC on behalf of the Defendant submitted, it was notable that even in her ill state giving evidence at the trial, the strength and force of the Claimant’s own conviction was still apparent.

[157]The problem facing the Claimant on this dispute was that the tide of opinion was against her. I am satisfied on Dr Kaczmarski’s evidence and the notes of the meeting of 15 June 2006 (no other version having been put forward) that the NCRN was moving towards “working without walls”, which was entirely consistent with the wish of the Government of the day, which considered commercial work within the NHS as a priority for UK cancer research (meeting 15 June 2006). This was not a policy which could be adopted overnight and, as Dr Kaczmarski said, it evolved slowly, taking some years before it was fully in place.

[158]The concept had already been worked successfully in Edinburgh by Professor Gabra, and in Wales by Professor Leonard, though there, relationships between the working groups enabled the lead nurse to say whether a trial could go ahead or not.

[159]It appeared from the Claimant’s evidence that she did regard criticism of the WLCRN as being criticism of her and I accept Dr Kaczmarski’s evidence that having been in effect the successful creator of WLCRN the Claimant was very loath to release her hold on it.

[160]There is no doubt that some of Professor Gabra’s communications by email, particularly those on 25 September 2006, were, as I described in opening, “forceful and blunt”. The email of 25 September 2006 11.36, which is the one for which the Claimant repeatedly sought a rebuttal, was in response to her own email of the same date, unilaterally putting a hold on any new trials across the network on the mistaken basis that she had not been consulted about the new trials. Such a hold on new trials would have a profound effect on Professor Gabra’s work in the context, as Mr Warnock submits, of a pressurised NHS and academic environment where colleagues were themselves under pressure to deliver research of the highest international quality into prospective cures for cancer.

[161]In these circumstances it is difficult to regard Professor Gabra’s cross and critical reply as bullying.

[162]Professor Gabra’s apology in his email 9 December 2006 was said by the Claimant to be insufficient for the circumstances. He did however state that it was not his intention to belittle her and was unreservedly sorry if that was what came over. He stated that he had no personality issues with her whatsoever and noted the fact that they had had pretty good face to face meetings generally. He described Hammersmith as an exciting place to be with a team spirit high and he hoped that the Claimant would wish to be a part of that too and if she did he would be happy to engage with her fully. This response set out a basis for continuing or restarting the working relationship in an open manner provided they were working to the same end. The email of 25 September 2006 11.36 criticising the Claimant in response to her putting trials on hold was sent by Professor Gabra to all the relevant heads of department. The Claimant criticised Professor Gabra for this, but as Mr Warnock submits, Professor Gabra may well have seen it his duty to inform all the relevant heads of department of the nature and extent of the dispute, the stopping of trials and his response. It is to be noted when he sent his unreserved apology to the Claimant he also sent copies of that email to the heads of department as well. This was a fulsome apology, albeit the email in which it was contained required working together in the future towards an open pooling of resources, NHS and commercial.

[163]The Claimant’s failure to attend the meeting of 2 November 2006 was unfortunate. It would have given her an opportunity to express her views and argue her corner. When she said in cross examination that she didn’t attend the meeting as she thought personal harassment may have been a possibility by the sheer number of clinicians who wanted “working without walls”, it became clear that one of her reasons for not attending the meeting was that she felt she was losing the battle.

[164]I do not regard the chain of emails between 25 September 2006 and December 2006 between the Claimant and Professor Gabra, nor any of his conduct, as being ‘bullying’. They can not in my judgment properly be regarded as genuinely offensive or unacceptable behaviour but as tough exchanges between senior colleagues on a point of principle on which they both felt strongly. Professor Gabra was dissatisfied with the service he was receiving from Hammersmith and may well have regarded the acknowledged problems as not being solely due to lack of staff but because of the Claimant’s belief that “working without wall” was a concept which she resisted in principle. On 25 September 2006 11.36 he was responding to a unilateral and mistakenly based stopping of trials across the network.

[165]The Claimant made it clear in cross examination however that it was not just the events from September 2006 onwards but her earlier treatment at the hands of Professor Gabra about which she complained. The battle lines between her and Professor Gabra appear to have been drawn in 2004 when the Claimant told Adeaze Mouma to focus on WLNCR trials, and Professor Gabra is reported to have said to Ms Mouma that he was “at war with the NCRN”. The Claimant’s apology and Professor Gabra’s response show the early stages of the dispute in principle between two senior colleagues; none of these exchanges amount to bullying. I am unable to place any reliance on the meeting which took place with the NCRN in HQ in Leeds as there is neither evidence nor documentation to support this. It seems as if that meeting concentrated on the nature of the dispute, i.e. the reference to “knock for knock” rather than the Claimants own personal position.

[166]Nothing further happened of which the Claimant complains until November 2005, after the Claimant told Adeaze Mouma to stop commercial trials until she was completely on top of NCRN studies, and Professor Gabra reacted by asserting that the Claimant was damaging his research programme at the Hammersmith. Again I regard this as being part of the running dispute between two colleagues. The Claimant may not have been as senior as Professor Gabra or as influential but she was undoubtedly a senior employee who had power, for example to stop trials, and exercised it.

[167]Nor do I regard as bullying the suggestion by Professor Gabra that the Claimant should release her grip on Hammersmith, nor his reference to his friendship with the Professor David Cameron and his family, which was in fact correct. To mention a general relationship between two people who had worked together was not manipulation but part of an ordinary conversation. The dispute with Dr Mangar was part and parcel of the work situation and negotiation.

[168]I have therefore concluded that none of the conduct of Professor Gabra amounts to bullying within the meaning of that term applied to it either by the courts or by ACAS. He was on occasion forceful and blunt and, no doubt difficult, in the sense that Dr Kaczmarski explained that, i.e. being a man who was ambitious, wanting to pursue his research agenda and wanting more resources than were on offer. He described himself as a man “who likes to tell it as it is”. His purpose in doing so however was to further cancer research. The Claimant equally had power which, because of her principled opposition to “working without walls” she on occasion exercised by stopping trials or bringing about that effect. I do not regard Professor Gabra’s conduct complained of, when taken properly in context, to amount to conduct which is either genuinely offensive or oppressive and unacceptable or otherwise to amount to bullying.

[169]It may however have been the Claimant’s perception that the more she found the tide turning against her, as it undoubtedly was on the issue of pooled resources, the more she found the situation oppressive and perceived Professor Gabra’s conduct in the dispute between them as bullying. Whilst she felt that the sheer number of clinicians may have wanted “working without walls”, she may still have had some support from NCRN managers. I am not however in a position to weigh or assess this evidence because I have heard no NCRN witnesses apart from the Claimant, and I am therefore unable to judge whether the reported response to her from NCRN managers was one of kindness or sympathy rather than wholehearted support for her stance.

[170]I shall consider the Claimant’s perception of the conflict of principle between her and Professor Gabra, even though it did not in my judgment amount to bullying, under the heading of what signs and indications there were to the Defendant of her stress, and whether there were any signs of mental breakdown.

(b) Overwork/Stressful work

[171]From October 2005, after the retirement of the lead nurse I have no doubt that the Claimant’s work increased so that she was working longer than normal hours on many weekdays, and it was not unusual for her to work at weekends. Clearly such increased work load can increase pressure, particularly if the working relationships with other colleagues are not good and there is an ongoing conflict with one particular colleague.

[172]The Claimant, however, took on the additional role willingly and was well paid for it. It was a task she had been performing earlier which she was able to do. There was no lead nurse or other employee to cover such a role in place for about one year but during that time it was clear from the evidence that the Defendant, and indeed the Claimant, sought to obtain a replacement but was unable to do so as there was a shortage of people with suitable qualifications for the post. There is no suggestion that proper attempts to replace the lead nurse were not made.

[173]I accept that the pressure on the Claimant would have increased when seeking to achieve NCRN targets together with coping with the commercial trials which Professor Gabra and other clinicians wanted. But the Claimant made no complaint at anytime about being overworked and, as Mr Warnock for the defence points out, when she did contact Human Resources on 16 February 2007, she complained only about Professor Gabra and not about overwork. The Claimant was not ‘overworked’ in the sense that she was required to carry an excessive workload. Again the key question is what signs were apparent of stress, arising out of the combined effect of hard work and the Claimant’s perception of the conflict with Professor Gabra.

(c) Inadequate support

[174]The Claimant conceded that from the autumn 2006, with occasional reservations, she regarded Dr Kaczmarski as supportive, and her own emails bear this out. She was clearly grateful to him for writing the email that he did to Professor Gabra which elicited the apology even though she continued to seek a rebuttal.

[175]The extent to which there was a duty upon Dr Kaczmarski to provide support to a senior experienced colleague is determined by the apparent need for such support. I shall deal with this later in the judgment when considering what indications there were of stress.

[2]Did any such conduct cause occupational stress

[176]I have found that the Claimant was not bullied, but that she was working for long hours, even though she did so willingly and made no complaint about it, and am satisfied that the pressures of her job and her own perception of the conflict with Professor Gabra, and his conduct was one cause of the stress she suffered at work.

[3]The indications of impending mental injury

[177]There is no evidence that any other employee suffered from occupational stress, or mental injury, as a consequence of working in the hardworking and pressurised cancer research units. This applies to both clinicians and managers and other employees. It is not therefore a case where the Defendant was on notice, from other difficulties experienced, that a risk of occupational stress and subsequent mental injury existed. Where there are no signs that others doing the same work, in a pressured job, have already suffered injury to their health from their work, the focus is turned to the individual. I do not accept Mr Buchan’s submission that lack of appraisals, psychological risk assessment and adjustment of targets meant that this was a case where the hazard of stress occurring was high. Dr Kaczmarski was in regular contact with the Claimant by telephone and email and saw her weekly. They had a good working relationship and there is no reason to suppose that a formal annual appraisal would have given any better opportunity to assess and discuss stress.

[178]Nor, in my judgment, was it necessary for Dr Kaczmarski in such circumstances to carry out a psychological risk assessment. I am also satisfied on Dr Kaczmarski’s evidence that on the occasions the Claimant returned to work, although no formal written assessment was made, all the necessary work adjustments which were identified in accordance with the Claimant’s condition were considered and put into place. The Claimant clearly felt the pressure of having to reach the NCRN targets but this was a pressure made difficult because of her perception of her relationship with Professor Gabra and the conflict in principle about “working without walls”. Dr Kaczmarski was right in saying that his influence over Imperial was one of persuasion and cajolement rather than managerial influence.

[179]As to individual indications or signs from the Claimant herself of impending mental injury I am satisfied that there were none. There were signs of stress after 25 September 2006, and it was complaints of stress and insomnia and losing weight which caused Dr Kaczmarski to write the email that he did to Professor Gabra on 9 December 2006. He said however, and I accept that evidence, that he was not able to observe those changes himself but was relying on what the Claimant herself told him.

[180]It is important to note that at no time did the Claimant tell the Defendant that she had a pre-existing psychiatric condition. Neither Dr Kaczmarski nor anyone else at the Defendant was aware of it. The fact that she sought to keep any information about illness or impending illness from those at work is clear from her emails, none of which make a single reference to her health or any threat to it. Nor does their content or tone suggest it. She made no mention of problems at work to her GP in February 2006 but attributed any problems she might have then to the menopause. She is recorded as not referring to any stress or problems at work when she saw her GP on 27February 2007, though she disputes that and says she did, as well as referring to the death of her father. When the respiratory physician saw her, and not only diagnosed her with having a chest condition but also a depressive illness, she made no mention of any illness apart from a chest infection in her letter to Dr Kaczmarski. There is no hint of it there.

[181]There is some contrast with what the Claimant was confiding to some of her friends outside work. She clearly indicated to them that she was suffering stress at work though the timing of this is put by most of the witnesses as from September 2006 onwards or indeed in 2007. It appears that none considered that she required advice about seeking medical help until the time of her breakdown. The reason for the Claimant’s reticence to her employers is clear; she said in evidence that the reason was that she did not wish to be seen as weak.

[182]I am satisfied on the evidence that there was no sign or indication available to the Defendant of impending mental injury to the Claimant. Dr Kaczmarski was made aware that she felt “forced (harassed)” by 25 October 2006 but the request for a rebuttal letter appears upon its face to address a defamatory wrong. It does not suggest either stress or injury.

[183]The Claimant herself was diffident as to the full extent to which he had made complaints to Dr Kaczmarski. She said she “believed” that she had told him about three problems in February 2006 but she wasn’t sure if she mentioned they were work related. She said that she thought she had told Professor Leonard that Professor Gabra was bullying her and “in her memory” thought she did tell Dr Kaczmarski that she was feeling stressed. I accept the evidence of Dr Kaczmarski that she did not in fact complain about insomnia or fatigue until shortly before he wrote his email of 9 December 2006 to Professor Gabra setting out what he understood to be the Claimants account in a manner which properly represented that account, and maintained relations with Professor Gabra. I specifically reject the Claimant’s evidence that Dr Kaczmarski turned away and rolled his eyes when she complained about insomnia so that she gave up when he asked her how she was feeling, or that he made disparaging references to her when she says she complained of having a black tongue. I also note that she told Dr Stevens on 30 March 2007 that she had felt increasingly denigrated from about October 2006.

[184]Her reticence to her employers about her growing health problem was consistent not only with her desire not to appear weak to her employer, but also her desire to remain at all times professional in her conduct and approach. This is admirable and clearly from the documentation she succeeded in doing this, but it may well have been, sadly, to her own detriment as far as her health is concerned.

[185]I therefore conclude that there were neither indications nor complaints of impending harm to her health arising from stress at work. I am clear that there were none at all that were plain enough for any employer to realise that he must do something about it. I am satisfied that the psychiatric breakdown came as a surprise to Dr Kaczmarski, and that that, given the Claimant’s reticence, was understandable.

[186]It follows therefore that in my judgment no duty of care arises.

[4]Breach of duty

[187]I will deal with the issue of breach even though I have found that no duty arose, as the matter was fully argued.

[188]I do not accept Mr Buchan’s submission that the risk of injury to the Claimant was of such magnitude that the failure to manage her work load and reduce it accordingly was a breach of the duty of care. The problem which the Claimant faced was not one of the amount of work per se, but dealing with the interface between commercial trials and NCRN trials and the pressure which her perception of the dispute between herself and Professor Gabra on that issue placed upon her. I am not satisfied on the evidence as a whole that the number of hours she worked, including extra hours, and the volume of work were in themselves or cumulatively such as might create occupational stress. It was the dispute with Professor Gabra and her perception of that which created the stress even though Dr Kaczmarski was reasonably not aware of that until after her complaint of harassment in October 2006.

[189]I do not consider that there were any further steps which Dr Kaczmarski could have taken on the evidence or could have considered needed to be taken. I reject the allegation that the support he gave to her was inadequate in the circumstances. He did not regard the email of 25 September 2006 11.36 as being bullying and I have found that his view of that email was reasonable.

[190]Nor do I consider it negligent on the part of Dr Kaczmarski not to have given the Claimant specific instructions as to how she was to handle her relationship with Professor Gabra in relation to pooling of NHS resources. This was an evolving concept within the NHS and one which it was perfectly reasonable to leave a senior manager to resolve with her colleagues. She knew that the tide was towards “working without walls” even though she did not approve of that. When it became apparent to him after October 2006 that the Claimant was feeling harassed Dr Kaczmarski was supportive of her, as the emails show, and strongly supportive of her in his email of 9 December 2006 to Professor Gabra.

[191]As Mr Warnock submits, Dr Kaczmarski had no line management responsibility or control over Professor Gabra and the most he could do was to try to cajole and influence others. He had to, and sought to maintain good relations with all those working together. When he did write his email of 9 December 2006 to Professor Gabra he tried to strike this balance of supporting the Claimant and maintaining working relations with Professor Gabra, and the email was successful in that it elicited an apology.

[192]There was no basis for referring the Claimant to occupational health in December 2006. There was no indication for him to do so. On the Claimants own case she had in fact spoken to the HR manager of counsellor services at the Hammersmith, and to Jan Benyon the general manager for cancer services at Hammersmith, and to Dawn Morris the assistant director of HR at Hammersmith in December 2006. She could have referred herself to occupational health or sought help from her GP in December and did so in any event in January, when she saw the Hammersmith respiratory physician Dr Francis Bowen, and her own GP on 27 February 2007. Further, there is no evidence that a referral a few weeks earlier would have made any difference. It was suggested that Dr Kaczmarski should have insisted upon the Claimant following formal grievance procedure despite her own reluctance to do that. This cannot have been a breach of duty. She was reluctant to do it because of the risk of increased stress and there was no basis upon which the Defendant could have been obliged to force that upon her. I reject Mr Langley-Sowter’s opinion that Dr Kaczmarski was “weak”, the evidence does not suggest that to be so.

[193]Nor do I think there was any breach of duty in the way that the Claimant’s returns to work were handled by the Defendants. I am satisfied that Dr Kaczmarski acted in accordance with advice from occupational health and put in place all the items that would have been dealt with under a written risk assessment, had one been done. All proper steps were taken. Indeed there is no evidence to suggest that there was any particular failure in any relevant respect.

Causation

[194]If I am wrong about there being no duty, and wrong about there being no breach of duty, the issue arises as to whether the Claimant would have established that any breach of duty which occurred caused the mental injuries.

[195]Whilst it is true that the Claimant had a pre-existing psychiatric order with a recurrence rate of 90% which could have occurred ‘out of the blue’ on the agreed medical evidence, however long ago the last episode was, I am quite satisfied that a number of factors played a part in the causation of her ultimate severe psychiatric injury. All these factors were against the background of her pre-existing psychiatric disorder which made her vulnerable, but each of them played a part in my judgment in her psychiatric breakdown. The first is her perception of her relationship with Professor Gabra and the extent to which the conflict with him placed pressure and stress upon her. Whilst she did not exhibit signs of this or make it known to the Defendant in such a manner as to give rise to a duty, it was, I am satisfied having an effect upon her. Secondly, although she was not overworked, the pressures of a hardworking long hours job together with her perception of bullying combined to create the stress which, in my judgment was a factor in her psychiatric breakdown because of her particular vulnerability. I am also satisfied that the death of her father was another factor which made her even more vulnerable to breakdown and made a contribution towards that breakdown.

[196]I do not therefore accept Mr Warnock’s submission that occupational stress was not a material contribution to the recurrence of her psychiatric condition in 2007. I am satisfied that it was, albeit caused principally by the Claimant’s personality, and her perception of the conflict with Professor Gabra, a material contribution to that recurrence.

[197]It should be noted that the Claimant did not pursue her whistle blowing argument nor did the Defendant pursue the allegations of contributory negligence.

Quantum

[198]In case it is of assistance to the parties I shall give some brief indications as to my views of quantum. Firstly, the Claimant’s case falls within the “Moderately Severe” category for psychiatric injury, the upper end of the bracket in the JSB Guidelines. I consider that the proper figure is, £20,000 for pain suffering and loss of amenity allowing for her vulnerability because of her underlying condition.

[199]The psychiatrists were agreed that any further episodes of depression after January 2013 were not caused by stress at work; they were part of the natural progression of her underlying condition.

[200]Secondly, the Claimant’s loss of earnings is therefore restricted to the period to December 2012 and amounts to an agreed figure of £111,171 net. Thirdly, the Claimant is not entitled to any future loss of earnings as she would have ended up in the position she is now in in any event in January 2013. Jobling v Associated Dairies (1982) A.C. 794

[201]Fourthly, there was no evidence of any care claim simply a figure put forward in the schedules. Fifthly, there was no evidence before the court of any loss of pension.

[202]Issues of care and pension loss remain unproved.

Conclusion

[203]This is a sad case where the Claimant has suffered substantial psychiatric injury but where in my judgment she is not entitled to claim damages from her employers. A psychiatric injury was not foreseeable and no duty of care arises. Nor on the facts was there a breach of the duty of care. Had there been I would have found that occupational stress played a part in the causation of her ultimate psychiatric breakdown, sufficient for it to be a material contribution.

[204]The impending breakdown was not known to the Defendant. It was not aware of her pre-existing condition and liability to recurrence of psychiatric disorder, nor were there any signs or complaints that this was impending. The Claimant’s psychiatric breakdown was caused in essence by her disagreement in principle with Professor Gabra as to pooled NHS and commercial resources, and her disbelief that his view was gaining credence. It was her own internal perception of that conflict and Professor Gabra’s conduct which was the driver, unknown to the Defendant, of her psychiatric breakdown.

[205]As Mr Warnock submits, the dicta of Lord Justice Brown as he then was, in Garrett is apt;- “Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless describe some at least of their problems to the strains and stresses of their work situation; be it simply overworking, the tension of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the Claimant employers ought reasonably to have foreseen and they ought properly to have averted their can be no liability.” End of judgment.