Professor Galip Akay v Newcastle University
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender |
| Judgment Date | 25 June 2020 |
| Neutral Citation | [2020] EWHC 1669 (QB) |
| Date | 25 June 2020 |
| Docket Number | County Court Claim No: B70YM939 |
| Court | Queen's Bench Division |
[2020] EWHC 1669 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
ON APPEAL FROM
THE COUNTY COURT AT TEESSIDE
Combined Court Centre
1 Oxford Row
Leeds LS1 3BG
(Remote hearing conducted by Skype for Business)
Mr Justice Lavender
County Court Claim No: B70YM939
Andrew Buchan (instructed by Oakwood Solicitors Limited) for the Appellant
James Weston (instructed by Weightmans LLP) for the Respondent
Hearing date: 15 May 2020
(1) Introduction
This is an appeal against the order of HHJ Gargan, sitting in the County Court at Newcastle on 1 May 2019, striking out as an abuse of process the Claimant's claim for damages for personal injury, namely post-traumatic stress disorder, allegedly caused by breach of contract, breach of duty and/or harassment on the part of the Defendant. There is also an appeal against HHJ Gargan's order of 23 July 2019 that the Claimant pay the Defendant's costs of the proceedings.
(2) The Claimant's Employment
The Claimant was employed by the Defendant from January 1998 to 30 September 2013, when he either retired or was constructively dismissed. As to what happened during his employment, he contends in his Particulars of Claim that:
(1) From 21 January 2001 the Defendant's employees harassed and bullied him, with the result that the Defendant was in breach of contract, in breach of the duty of care which it owed to the Claimant and in breach of the Protection from Harassment Act 1997.
(2) He was signed off work with work-related stress:
(a) for 2 weeks from 19 June 2003; and
(b) for 2 weeks from 14 January 2005.
(3) He sent an email dated 3 May 2007 which “made express reference to the adverse impact which the ongoing issues were having upon his psychiatric health.”
(4) In or around 2008 he had a meeting with Professor Steve Bull in which he “expressly disclosed to Professor Bull that the ongoing issues in the workplace were having a detrimental effect upon his health.”
(5) On a number of occasions in 2012–13 the Claimant took time off due to work-related stress.
(6) On 12 July 2012 he sent an email which “made express reference to the adverse impact which the ongoing issues were having upon his psychiatric health”.
(7) 30 August 2012 was the date on which the Claimant's injury became so significant as to warrant increasingly frequent attendances on his GP and was therefore his “date of knowledge” for the purposes of sections 11 and 14 of the Limitation Act 1980.
(8) On 20 September 2012 the Claimant sent an email in which he expressed his concern that “his stress symptoms were so severe that he may be at risk of a heart attack.”
(9) In January 2013 the Claimant spoke to the Pro-Vice Chancellor about “the adverse effect matters were having upon his health.”
(10) On 14 February 2013 the Claimant sent another email in which he referred to “the adverse impact which the ongoing issues were having upon his psychiatric health”.
(11) On 9 May 2013 the Claimant referred in a review meeting to “the adverse impact … upon his psychiatric heath”.
(12) The Claimant has sustained Post-Traumatic Stress Disorder as a result of the Defendant's conduct.
Meanwhile, the Claimant was referred by his GP to Dr Hardman, a psychologist, who said that the Claimant had “post traumatic stress syndrome” and who prepared a report dated 10 October 2013 in which he said as follows:
“… your presentation suggests that you are suffering from symptoms of traumatic stress secondary to the events and experiences you have described in your working environment. … As a consequence of the pressures you feel in your job you present with many salient features of stress: insomnia; intense panic symptoms; problems with concentration; paranoia, excessive worry and rumination.”
The subsequent report of Dr Jarman, to which I will refer in due course, contains a summary of the Claimant's medical records. In particular:
(1) The Claimant had a nervous breakdown on 11 October 2013 (when he received Dr Hardman's report). I note that the entry in his GP's records for 11 October 2013 states, “Psychologist as per family have diagnosed him with PTSD”.
(2) A letter dated November 2013 from Newcastle upon Tyne NHS Foundation Trust “notes perforation secondary to sigmoid polypectomy requiring an open right hemicolectomy and primary anastomosis.” This was major bowel surgery, as a result of which the Claimant was in hospital for 11 days.
(3) The entry for 21 May 2015 quotes a “To Whom It May Concern” letter from the Claimant's GP, which states as follows:
“I can confirm that his capability to do his duties were significantly affected already in July 2013 due to symptoms of stress related illness linked to his work. Although a sick note was not issued at the time, he required medication and further psychological support. Symptoms deteriorated during October 2013 when he had a nervous breakdown.”
“Due to his medical problems in October 2013, (traumatic stress and nervous breakdown) and in November 2013 (bowel removal), he would have been unfit to work during the whole of October to December 2013.”
(3) The Employment Claim
The Claimant brought a claim (“the Employment Claim”) against the Defendant in the Employment Tribunal on 23 December 2013, by which he alleged:
(1) in relation to his alleged dismissal (“the Dismissal Claims”):
(a) unfair dismissal; and
(b) direct age discrimination; and
(2) over the period from 1999 to 2004 and from 2010 to 2013 (“the 2013 Harassment Claims”):
(a) discrimination on the grounds of age, race and religion;
(b) harassment; and
(c) victimisation.
It is acknowledged that the present claim arises out of essentially the same underlying facts as the 2013 Harassment Claims. However, the Claimant did not claim damages for personal injury from the Employment Tribunal, although it had jurisdiction to determine a claim for damages for personal injury.
The Claimant's evidence as to why he did not make a claim for personal injury before the Employment Tribunal is set out in his statement dated 8 March 2019, in paragraph 1 of which he said:
“For the avoidance of doubt I deliberately chose not to bring a claim for personal injury in the Employment Tribunal. No medical evidence was therefore obtained in those proceedings. I was advised that injury to feelings is not the same as personal injury.”
Attached to the Claimant's ET1 claim form were 11 pages of Grounds of Complaint, which contained details of the matters about which the Claimant complained, going back to 2000. It was asserted in the Grounds of Complaint that the Claimant:
“was diagnosed as suffering from post traumatic stress syndrome as a result of the fear of losing his job through false allegations and being “framed”.”
However, the Claimant did not give proper particulars of the 2013 Harassment Claims, despite repeated orders requiring him to do so. In a judgment dated 5 November 2014, and sent to the parties on 6 November 2014, the Employment Tribunal struck out the 2013 Harassment Claims. It did so on two grounds.
(1) The first was the Claimant's failure to comply with the orders requiring provision of particulars, which the Employment Tribunal described as “contumelious disregard for those orders”.
(2) The second was because the 2013 Harassment Claims had no reasonable prospect of success, at least in the sense that the Claimant had no reasonable prospect of establishing either that the claims were brought within the primary time limit or that the Employment Tribunal ought to extend that time limit.
(4) The Commencement of the Action and the Compromise Agreement
The Dismissal Claims were still proceeding when, on 3 July 2015, the Claimant's solicitors wrote to the Defendant and stated that they had been instructed to pursue a personal injury claim against the Defendant. Then on 25 August 2015 the Claimant issued the claim form in the County Court at Newcastle. This stated, inter alia, that:
“The Claimant will aver that they have [ sic] suffered psychological injury (work related stress) as a result of the Defendant's negligence, breach of contract, breach of statutory duty and/or bullying and harassment.”
There was a mediation of the Dismissal Claims on 27 August 2015. That resulted in a Compromise Agreement dated 3 September 2015 by which the parties settled the Dismissal Claims. Although issued on 25 August 2015, the claim form was not served on the Defendant before 3 September 2015. By the Compromise Agreement, the Defendant agreed to pay £65,000 to the Claimant, made up of £30,000 as compensation for termination of employment and £35,000 as compensation for injury to feelings.
Clauses 6 and 7 of the Compromise Agreement referred to the Claimant's personal injury claim, as follows:
“The Claimant confirms that he is aware of no other cause of action which he has made against the Respondent (save for the personal injury claim referred to in clause 7) …
The Claimant is not precluded by this agreement from bringing any personal injury claim against the Respondent where he is not and could not reasonably have been, aware of any such claim at the date of this Agreement. For the avoidance of doubt nothing in this Agreement prevents the Claimant from pursuing the personal injury claim that he has already made. The making and pursuing of this claim is not a breach of this agreement.”
In his witness statement of 8 March 2019, which was not controverted, the Claimant gave evidence as to the mediation and the subsequent negotiation of the terms of the Compromise Agreement, in which he was represented by the late Jake Dutton of counsel and the Defendant was represented by Victoria Vallely. In particular, the Claimant said as follows:
(1) In paragraph 11:
“I had made it clear during...
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