Mullen v Accenture Services Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 16 July 2010 |
| Neutral Citation | [2010] EWHC 2336 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: TLQ/2009/1071 |
| Date | 16 July 2010 |
[2010] EWHC 2336 (QB)
IN THE HIGH COURTS OF JUSTICE
QUEEN'S BENCH DIVISION
Before: His Honour Judge Harvey Clark QC
(Sitting as a Deputy Judge of the High Court)
Claim No: TLQ/2009/1071
Mr Andrew Buchan (Instructed By Magrath) Appeared On Behalf Of The Claimant
Mr David Thomas For John Mcdonald (Instructed By Dwf Llp) Appeared On Behalf Of The Defendant
Approved Judgment
No of Folios in transcript—193
No of words in transcript—13.922
JUDGE CLARK QC:
Part A—Preliminary
The Defendants, Accenture Services Limited are a well known management consultancy. Amongst other services provided, the company assists clients with the introduction of new technology. In April 2004 the Claimant, Kevin Mullen, joined the Defendants as an analyst. On 14 th March 2006, whilst working at the Defendants’ office in Leeds, the Claimant suffered a mental breakdown in the course of his employment. He never returned to work with the Defendants. Eventually, at the end of November 2007, his employment with the Defendants was brought to an end as a consequence of his starting work in early December 2007 as a computer programmer with the Royal Institute of Chartered Surveyors. 11 months later, however, he was dismissed from this employment. Since then he has been unemployed.
The Claimant brings an action for damages for personal injury and consequential loss on three broad grounds. First, he claims that while he was working at the Leeds office in the first two and a half months in 2006, he was victimised and bullied by his line manager, Mr Gareth Hall. He says that Hall's behaviour was permitted and condoned by the project manager, Mr Gareth Everson. This behaviour caused him to suffer emotional distress and psychiatric injury as a result of which he was unable to continue working for the Defendants. Further, or in the alternative, the Claimant maintains that during this period in Leeds he was exposed to such stress at work that he developed a stress related illness, namely anxiety and depression, which effectively prevented him from remaining in the employment of the Defendants. Thirdly, he claims that, irrespective of any common law liability, the Defendants were in breach of Regulations 3 and 4 of the Management of Health and Safety at Work Regulations 1999 and, it is submitted on his behalf, that breach of the statutory regulations gives rise to an actionable claim which involves a less onerous test in respect of foreseeability and causation.
Section B—The Factual Background
The Claimant was born on 21 st February 1980 in Ayrshire in Scotland. At the age of about four he was sexually abused by a neighbour. This incident apparently remains his most vivid memory of childhood. Academically, as a schoolboy, he did well. In 1997 he gained a place at St Andrews University to study computer science. At Christmas 1998, however, he came face to face with the man who had sexually abused him as a child. In January 1999 he reported symptoms of panic attacks to his local general practitioner in St Andrews (trial bundle page 930). The GP referred him to a psychologist (page 954). In evidence the Claimant denied experiencing panic attacks at that time, but did accept that he was referred to Dr Jane MacMillan. She reported in May 1999 (page 958) that he was “low in mood and experiencing anxiety.” She continued, “He presents as a very sensitive and intelligent young man who feels confused about his own sexual identity.” On three occasions that summer she treated him for his symptoms. In 2001 the Claimant received a 2:1 at the end of his degree course. While at university he had been physically active and in particular, participated in sky diving. In the autumn of that year he started a PhD in computer science at St Andrews. In 2002 he noticed a disturbance of his heart rhythm and in September consulted a cardiologist. He was suffering heart palpitations, but no significant abnormality was discovered (page 1015).
In August 2002, however, he reported to his GP (page 935A), “stress re departure of girlfriend overseas” and in May 2003 he was having problems establishing sleep patterns. Of more significance is an entry for July 2003 (page 935C), which reads:
“At a post-graduate assignment on 13 th June, at which he was told his work was not going well. He had thought things were going rather well so this was a blow and he has not really got back to work since then; took three weeks off to reflect on it. Now back at work and all okay, but may need certificate.”
The letter dated 30 th July from the GP to the university (page 982G) refers to the Claimant receiving medication for his depression. In evidence he said there was at this time a big problem with his project. Moreover, he said:
“I was unhappy and lonely. I had learned that I was gay and was coming to terms with my sexuality.”
In his report dated 23 rd December 2007, Professor Tom Fahy, the consultant forensic psychiatrist, described the Claimant as (page 562):
“A highly intelligent and motivated person who creates a positive impression on interview. Nevertheless his GP records suggest that he is vulnerable to psychiatric symptoms at times of stress, especially following disruption to intimate relationships. It is clear that his emotional reaction to such events can reach clinically significant proportions.”
Dr Anthony Cleare, the consultant psychiatrist instructed on behalf of the Defendants, agreed with this assessment. In their joint report dated 15 th June 2010 (page 598) the psychiatrists agree that the Claimant:
“Has a prior history of psychological vulnerability, evidence for this including previous anxious and depressive reactions to stressful life events and a history of childhood adversity. This vulnerability would have continued regardless of Mr Mullen's experiences at work.”
In the autumn of 2003 the Claimant left St Andrews University whilst still only halfway through his PhD course. At the end of the year he applied for a job with the Defendants. His job application (page 1117) contained the observation:
“Concerned about lack of stability if need to settle. Not bothered by long hours.”
In January 2004 he was interviewed. In answer to a question in or before one of the interviews he stated that he had no current health issue or medical history (page 1125). In evidence the Claimant said:
“I divulged that I had been on anti-depressants in my medical history before I joined Accenture.”
In saying this he was referring to the answers he gave in an assessment form he submitted to a company called Previa, who carried out health checks on people applying to join the Defendants. This assessment form was produced during the course of the hearing. It should be emphasised straightaway that, for reasons which do not matter, the form was never seen by any employee of the Defendants. Further, any medical information contained on the form was not passed on to the Defendants. All the Defendants knew was the opinion of the independent occupational health adviser that the Claimant was “fit for specified employment” (page 1128).
Nevertheless, the answers given by the Claimant to the questions on the assessment form are of some relevance. In answer to the question, “Have you been absent from work for any medical reason for more than 10 days in the past 12 months.” He replied, “No.” This answer ignored or overlooked the fact that for three weeks the previous summer he had, because of depression, not been working on his PhD at university. Of greater significance were his answers to questions 17 and 18:
“Question 17: Have you received treatment for anxiety/depression or other mental health disorder? Answer: Yes. I had insomnia and became depressed after I lost my partner of seven years, whom I had been with since we were at school together. My symptoms were directly related to a difficult event in my personal life. I am no longer receiving treatment.
Question 18: Have you had treatment or support from a psychiatrist, psychologist or counsellor?
In his evidence the Claimant said:
“I accept those answers are not full and are not entirely truthful. I was depressed, because I was lonely and wanted to meet another gay man.”
In evidence Professor Fahy said:
“The answer to question 18 is incorrect, while his answer to question 17 does not present an accurate picture of his medical history.”
I accept that the Claimant was, quite understandably, reluctant to reveal in a medical questionnaire the fact that he was homosexual. In addition, he naturally wanted to present as favourable a medical picture of himself as he could. On the other hand, his answer to question 18 was quite simply untrue. He had received treatment and support from the psychologist, Dr Jane MacMillan, during the spring and summer of 1999. Further, his answer to question 17 was misleading in that it suggested his insomnia and depression were a direct and temporary response to the break-up of a romantic attachment formed at school. As I have indicated, the truth was rather different, particularly insofar as his depression the previous summer had been triggered by criticism of the quality of his work. In the event the answers he gave both to the questionnaire and under cross-examination about it, did not fill me with confidence about his reliability as a witness of truth.
The Claimant was duly recruited by the Defendants and started work with them in April 2004. All the evidence suggests that the Defendants can properly be...
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