Stuart-Smith L.J.
Introduction
On 13 August 1982 the Plaintiff's daughters, Philipa, aged 7 and Theresa, aged 3½, together with a third child who was the daughter of friends, were being driven in a Volvo motor car by the Vernons' nanny, the Defendant. At Ynys Isaf Ystradgynlais in Powys the Defendant lost control of the car and it crashed down a 30 foot bank into the fast flowing river which ran alongside the road. The Defendant managed to escape from the car. But the children were trapped. The Plaintiff and his wife, who both worked at a factory nearby, were called to the scene by the police. When they arrived they watched the attempts of the rescue services to retrieve the car and save the children. At one stage there was a glimmer of hope that one of the girls might still be alive, but it was not to be. It has never been disputed that the accident was caused by the Defendant's negligence.
The Plaintiff was born on 30 April 1942, he was therefore aged 40 at the time of the accident. His case was presented to the Judge on the basis that he "suffered a very severe degree of nervous shock and psychological trauma and subsequently developed a severe post traumatic stress disorder ("PTSD") complicated by a severe grief reaction". It was said that by 1982 he was a successful businessman who, after a public school education and a career in the Army, had moved into executive employment with three major corporations in succession and then, using his accumulated skill and experience, had bought a viable and potentially prosperous business which he was in the process of building up when this tragedy struck. From then on, in spite of stoical efforts to sustain normality, he went to pieces; his business failed and he became unemployed and unemployable, socially inept and domestically insufferable. His wife and their three children born after the accident have now left him, and he lives an aimless and reclusive life. At 51, instead of success and fulfilment, he has, thanks to this accident, neither a present nor a future. His counsel, Mr. David Blunt QC, when opening the case, described him as a man shown by his career to have been "quite outstanding: intelligent and capable, confident, highly motivated, hardworking and ambitious, determined, courageous and reliant, a motivator of others, resourceful and imaginative, always anxious to acquire new skills, decisive, good at solving problems, someone who understood the value of careful planning and forethought, an enthusiast, full of initiative (if he perceived that a job needed to be done he rolled up his sleeves and got on with it and led from the front) and always ready to volunteer, someone who cared for his colleagues and subordinates, motivated them and commanded their respect". Mr. Blunt accepted that his client had disagreements with colleagues and became "ensnared by big company politics and reorganisations" but submitted that this is not untypical of the career of a high achiever; nor, he submitted, was the stress which from time to time the Plaintiff suffered requiring minor medication. With his business success went "a fulfilling social life, numerous interests and hobbies, and a loving and happy family life".
At the time of the accident the Plaintiff was Chairman, Managing Director and majority shareholder of Paraero Ltd. This company, largely with the financial backing of the British Rail Pension Fund, had bought the assets of a company called Precision Circuits Ltd., in receivership. It was his case that as a result of witnessing the accident he was a changed man, his own level of performance was dramatically reduced and key personnel were no longer able to work with him and left. In the result Paraero went into receivership in January 1986 with the result that the Plaintiff sustained capital and income losses of the order of £3m.
In addition to this it was the Plaintiff's case that but for the effects of the accident he would have obtained employment in 1986 in the upper echelons of management of a multinational company, but effectively he was now unemployable. There was also a very substantial claim for past and future care on the basis that the Plaintiff needed secretarial services, which had previously been provided by his wife until the marriage broke down and she left him in 1992. He also required domestic help and a gardener because he was not capable of doing these things for himself.
The Defendant has throughout accepted that the Plaintiff fell into that category of person who may be awarded damages resulting from the nervous shock of witnessing an accident or its immediate aftermath. Her case was, and is, that the Plaintiff did not suffer from post traumatic stress disorder ("PTSD") which is the term now used by psychiatrists in relation to this type of mental disorder, as opposed to a grief reaction, normal or abnormal (pathological grief disorder or ("PGD")), which he would have suffered in any event if he had not witnessed the tragedy, but been told of it at a distance. The Defendant further contended that the accident and its effect on the Plaintiff was not causative of the collapse of Paraero; this was due to other factors and it would have collapsed when it did for the reasons it did irrespective of the accident.
Her case at the trial was that the Plaintiff was a Walter Mitty character from the start, failing far more often than he succeeded at each stage of his life, making enemies through his own deficiencies of character and forever blaming others; a man who continuously refashioned his extremely modest achievements into a grandiose myth; who, having failed in a succession of employments, had bought at an overvalue an ailing company which was destined to founder for economic reasons and the Plaintiff's defects of character; who has consistently with his life-long character blamed the failure of Paraero on everything and everybody but himself.
The Defendant now accepts that the Plaintiff is, or was at the date of trial, genuinely suffering from mental illness, though not to the extent alleged or requiring the care and support claimed. It is her case on appeal that the Plaintiff failed to prove that this was due to the shock of witnessing the aftermath of the accident as opposed to a grief reaction at the death of his children and the effects of the collapse of the business, his inability to get employment thereafter, and perhaps also the effects of a head injury in December 1985, on a fragile personality which throughout his life had been prone to react badly to stress.
The trial began on 21 January 1994. The Judge listened to 68 days of evidence, including that of four psychiatrists, three psychologists and three accountants. This was spread over four periods; from 12.1.94 - 18.2.94, 7.3.94 - 30.3.94, 12.4.94 - 26.5.94 and 11.7.94 - 14.7.94. In addition he had extensive written submissions and 2 days oral submissions. There was a vast amount of documentation and oral evidence relating to every phase of the Plaintiff's life. His main judgment runs to 262 pages and was delivered on 30 January 1995. Further argument on reserved matters, such as interest and costs, took place, and the Judge gave judgment on these matters on 10 May 1995.
The Judge held that the Plaintiff's present mental illness was one in respect of which he was entitled to recover damages. The precise basis upon which he so concluded will have to be examined later in this judgment, since it is the subject of the Defendant's first and main challenge on this appeal.
He rejected the Plaintiff's claim that the loss of his business, Paraero, was attributable to his illness, holding that it would have occurred when it did in any event. He rejected the Plaintiff's case that he was destined to be high flyer and high earner in the top echelons of international companies, and in many respects he accepted the Defendant's submissions in relation to his pre-accident personality. He awarded the Plaintiff a total of £1,332,231:59 by way of damages and interest. It is convenient to set out here the sums awarded by the Judge, the sums claimed by the Plaintiff under various heads, and the interest on those sums.
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In this appeal the Defendant challenges the total award on the basis that the Judge wrongly held that the Plaintiff suffered nervous shock from witnessing the aftermath of the accident and mental illness in consequence. Alternatively, the Defendant challenges the special heads of damages contained under head (2) past and future loss of earnings, (7) past care by Mrs Vernon, (8) future care, the amount awarded by way of interest and costs in relation to the Paraero issue, on which the Defendant was successful.
Even though the Judge awarded less than a quarter of the Plaintiff's claim, it is nevertheless surprising at first blush that the difference between witnessing the tragedy, in the sense that the Plaintiff came upon the scene during the rescue attempts, and hearing of it at a distance, should result in an award of £1_m.
The Judge examined the Plaintiff's career from his schooldays to the present in very great detail. He was able to do so because there was a mass of documentation which shed light upon his previous personality. A great deal of this had been kept by the Plaintiff himself; other material was produced upon third party discovery and by subpoena, for example from the Ministry of Defence in relation to his army career and from the Receivers in Paraero in relation to the reasons for the collapse of that company. This documentation led the Judge to reject very substantially the Plaintiff's view of himself as having been a success, at times throughout his career outstandingly so, who, but for the accident, would have made a great deal of money out of Paraero and then gone on to earn a high salary as chief executive or sales director of a multinational company. The Judge felt himself unable to accept the Plaintiff's evidence, save in so far as it was corroborated. He said that his present claims about his former qualities and achievements were frequently grandiose and absurd. He held that he confabulated, though this was due to his present illness.
Since the Defendant in this appeal relies upon many of the Judge's findings in relation to the Plaintiff's previous career, it is necessary to set out, as briefly as possible, this history and the Judge's findings.
School
The Plaintiff was an only child. His early schooling took place in Africa. At first in a preparatory school in South Africa, where he was miserable, partly because he was separated from his parents and partly because he was bullied. From there he went to a crammer in Nairobi; he did well in sports, and must have passed the common entrance, because he went to Monkton Coombe, near Bath, in 1956. There he did not do well academically, obtaining only three passes at `O' level. Although he claimed subsequently to have obtained 4 passes at `A' and `S' level, the Judge held that he never sat any of these examinations. Nevertheless, he seems to have done well in sport, he played for the 1st XV and rowed in the 1st VIII, and may have obtained the rank of corporal in the Corps. Reports on his character commented upon his trustworthiness, leadership qualities and conscientiousness - to the point of being over conscientious. But he is also referred to as moody and needing to show greater tolerance of others. There is later evidence from the Army records that he reacted badly to stress, for example before a match; the manifestation of this was acute diarrhoea. He was also much upset by his parents' separation which occurred in 1958.
The Army
The Plaintiff joined the Army in October 1960 as a private soldier. In December that year he was recommended for a regular commission and, after attendance at the Army Education School, he entered Sandhurst in September 1961. Sandhurst reports showed that he was perceived as "idle, immature and his qualities of leadership were a matter for concern", but his academic work improved considerably in his second year. In August 1963 he was commissioned into the Sherwood Foresters and in December that year he was posted to Cyprus. Almost immediately he was seeking medical help because of his diarrhoea which was brought on by stress. From 25 January to 7 May 1964 he was a psychiatric in-patient in military hospitals, at first in Cyprus and then at Netley in the United Kingdom.
Reports at this time reveal that on his admission to hospital there was a history of "a stressful situation arising with either his mother or a senior officer", with the result that he became anxious and tense, suffering from diarrhoea. It is recorded that he told the doctor that he "had some difficulty in `thinking straight' and had suicidal thoughts. The staff thought his behaviour unusual and confused. So serious does it appear to have been that a possible diagnosis of schizophrenia was considered, but in fact never made.
After his release from hospital he returned to his regiment. He was promoted to lieutenant early in 1965, but received no further promotion. From mid-1964 there followed what the Judge called "a downward slide in Mr. Vernon's assessed performance as a soldier". The trouble was the Plaintiff's total inability to get on with the more senior officers under whose command he was. So bad was this that after a series of very critical reports he was posted to a different regiment, the First Staffords in January 1968, in the hope that such qualities as the Plaintiff had would prosper in a different environment. At first they seemed to do so; but not for long. In September 1968 he was posted with his battalion to Berlin. In December he formed a relationship with a German woman who was the subject of a security investigation. He undertook not to disclose the investigation; but it seems that he did so and on 3 May 1969 he was arrested and interrogated for breach of this undertaking. The shock of this immediately produced a serious breakdown which necessitated admission to hospital on 7 May. The history records that while under investigation for breach of security regulations he showed "signs of instability and gross anxiety (diarrhoea, nausea, sweating, finger tremor and took to secreting razor blades about his person)". He was in hospital for a fortnight, at first in Berlin and then Munster. The diagnosis was anxiety state in schizoid personality: schizophrenia. It was accepted at the trial that the Plaintiff was not a schizophrenic, but this diagnosis, wrong though it was, does suggest that the Plaintiff's symptoms must have been fairly dramatic. When he learned that he was not to be prosecuted, he quickly recovered.
After his release there followed a series of adverse reports which recommended that the Plaintiff be required to resign his commission. On 18 July 1969 the Army Board required him to do so. This he did on 25 July with effect from 18 September 1969. Despite this ignominious end to the Plaintiff's military career, the Judge was impressed by the evidence of Mr. Peck, who was a friend, contemporary and fellow subaltern in the Staffords, who praised the Plaintiff's leadership qualities, his care for his soldiers and courage in standing up for them. The Judge concluded that this evidence tended to support those parts of some of the confidential reports which spoke of the Plaintiff's capacity to inspire loyalty in his subordinates and to give loyalty in return, and his ability to relate well to others of at least equal status and ability to himself. And he accepted this view.
But what is perhaps of more importance in the context of the Plaintiff's employability is his finding that the Plaintiff "not only found it difficult to the point of impossibility to accept serious criticism or to attempt serious self criticism; he found himself ineluctably drawn to criticise his critics for having defects which made it impossible for them to understand him or work with him". This, he said, prefigured a future pattern of response to criticism.
Rank Xerox
In December 1969, the Plaintiff obtained employment with Rank Xerox as a promotional salesman. He misrepresented his Army career by saying that he had obtained the rank of Captain. Perhaps not surprisingly he did not disclose that he had been forced to resign his commission. He also gave a false impression that he had passed `A' and `S' level in four subjects. At first he did well; but in March 1971 he incurred sharp criticism for an action plan which the Judge described as a `pretty jejune document'. And he was given a warning. This caused a bout of anxiety sufficient to make him consult his doctor who prescribed tranquilliser and sleeping pills. But he recovered and again did well as a senior salesman.
The Plaintiff married in November 1971 and then went to Uganda to take up a post as a sales manager. This was a branch of an operation based on Kenya. It soon ran into difficulties because of the appalling conditions created by President Amin. The Judge's assessment of the Uganda job is as follows:
"[It] was not, I consider, a dead end job as was suggested to Mr. Vernon in cross-examination. Nor, however, was it the hive of high powered activity and the source of high calibre experience and learning which Mr. Vernon's proof insists it was. It was a middle-ranking job with a small labour force, which threw up unexpected challenges to which Mr. Vernon rose, just as he has risen to specific challenges in sports events at school and in his career in the Army. It was not a post in which anyone could be a high flyer or acquire the techniques of high flying."
On his return from Uganda in June 1973 the Plaintiff was appointed to the post of marketing manager, new markets. The job was outside the corporate hierarchy and was not operational. Its object seems to have been to investigate the possibility of opening new markets, particularly in India and Arab countries. Some of his reports attracted fulsome admiration from his superiors. But in March 1975 the Plaintiff came into conflict with his superiors, Mr. Buckingham-Burr and Mr. Thomas. He appealed over their heads to senior management in the United States. Predictably this antagonised Mr. Buckingham-Burr and Mr. Thomas. At about this time he also fell out with another of his superiors, Mr. Lassman. In a memorandum to the latter in May 1975 he accused him of acting like Pontius Pilate or worse, of setting him a task which he hoped and expected him to fail in; he also referred to a threat to fire him. Next day he wrote a conciliatory letter claiming that his shortcomings were due to ill health and lack of sleep. He said he had a spell of malaria and influenza in the last few weeks. He did attend the Hospital for Tropical Diseases on 25 June 1975; but there is no medical record of malaria and the Plaintiff's problems were diagnosed as tension, anxiety and depression. He appears to have been off sick for about three weeks.
In February 1976 a vacancy occurred for the post of general manager in Nigeria. Although his immediate superior, Mr. Rauhio, recommended him for the post, it was never offered to him, although the Plaintiff claimed on a number of occasions before 1982 that it had been. It is evident that in May of that year the Plaintiff realised that the writing was on the wall so far as his employment with Rank Xerox was concerned. In a memorandum he recorded a conversation with Mr. Thompson. He wrote:
"You informed me that some senior officers of the company were not satisfied with my performance, in that I had low credibility with them and that consequently my application for the advertised post of GM RX Nigeria would not be successful. You also added that my future prospects in the company were almost nil and so you asked me to consider some sort of `package' whereby my contract of employment might be terminated on mutually satisfactory terms."
In due course a severance package was negotiated of £16,000, which represented about twice his annual salary. But this was not before one of the American directors, Mr. Allaire, had become involved. Once again, the Plaintiff sought unsuccessfully to go over his head to top management in the United States. The Judge observed that the Plaintiff was not actually dismissed from Rank Xerox. But it seems to me clear that they did not wish to continue with his services, and his departure was acrimonious, at least so far as his superiors were concerned.
In contrast to this, the Judge had the evidence of Mr. Stanic, who joined Rank Xerox in 1969 and remained there till 1978; he was in a senior capacity on the personnel side. He had a very high opinion of the Plaintiff's capabilities, putting him among the top ten percent of the thousand senior staff whom he knew well. The Judge accepted Mr. Stanic's evidence as to the perception of at least some people at Rank Xerox. He commented that although his own view of the Plaintiff before the accident was much less consistently favourable than Mr. Stanic's, those with whom the Plaintiff had to deal in the course of his work were much more nearly in Mr. Stanic's position. But this cannot have applied to those superior to the Plaintiff in the heirachy with whom he fell out so seriously.
The Plaintiff was told on 10 May 1976 that his employment with Rank Xerox would be terminated and he left in July that year. At the end of October he started looking for a new post, applying to executive employment agencies. In so doing the Plaintiff made a number of significant false and misleading statements about his career. The Judge commented that "increasingly it was going to become necessary for Mr. Vernon to explain to prospective employers in terms not too damaging to himself the reasons for his departure from a previous employment". He described what the Plaintiff had written about himself as "elasticity of presentation", and was it seems inclined to excuse it at least to some extent as being "part of the corporate structure in which self-aggrandizement was an accepted part of the process of assertiveness and executive machismo", though it showed "an inclination at least when under pressure to mould reality to desire".
Pye TMC
In April 1977 the Plaintiff obtained employment as marketing director of Pye TMC, which was part of the Philips Group, at a salary of £15,000. It was the only job he was offered. In many respects the Plaintiff did well at Pye; a number of witnesses were called on his behalf, including Mrs Noseda, his secretary, Mr. Taylor, who was export sales manager, Mr. Begg, who was the Plaintiff's chief of staff, who subsequently came to work at Paraero, and Mr. Davison. Mr. Davison, together with the managing director, Dr Westhead, had been responsible for the Plaintiff's appointment. All these witnesses were fulsome in their praise of the Plaintiff. By and large the Judge accepted their evidence; though he obviously had some reservations on the basis that the witnesses' proofs, which were put in as evidence in chief, tended to overstate the case. Moreover, Mr. Davison, who also came to work at Paraero, fell out with the Plaintiff before the accident and left. The Judge said that both the Plaintiff and Mr. Davison were reticent about the circumstances of this row.
On the other hand, the Plaintiff quickly fell out with his superiors. He had gone to Pye TMC in the hope, which may have been well founded, that he would succeed to Dr. Westhead's job in a year or so. In fact, Dr. Westhead left after two months and the job was not offered to him but to a Mr. Manley. The Plaintiff's reaction was intemperate. The Judge described it as "lashing out in anger at the slight to his self esteem" and commented that the Plaintiff had "now organised a hostile relationship with the new managing director, whoever it might be and with the personnel executive Mr. Sadler".
The Plaintiff did not cooperate with Mr. Manley and had a row with Mr. Walker, the finance director, about his status and lack of information provided to him. In May 1978, following a reorganisation, the Plaintiff's job would disappear. Once again the Plaintiff went over the head of his superiors to the Chairman of Philips PLC, but with little effect save in causing some delay in the planned reorganisation. Mr. Vernon's relations with Mr. Manley continued to deteriorate, and the latter told him to leave the office on 23 August 1978. And from that time onwards he started searching for another job, although he did not formally resign until 30 March 1979; he received a compensation package of £20,000 and kept his company car.
From time to time during his employment with Pye, the Plaintiff consulted his general practitioner for psychiatric reasons; these usually corresponded with periods when he was having rows with Mr. Manley and others. In August 1977 he was prescribed an anti depressant, Surmontil; in May 1978 there was a repeat prescription of Mogadon and in May he was prescribed Surmontil and Serenid; on this occasion he evidently told his doctor that he was apprehensive about losing his job again and being dismissed.
Simplex
Once again the letters written by him to executive employment agencies and by them on his behalf to prospective employers contain a significant number of falsehoods and, what the Judge called, half and quarter truths. And it was on the basis of such a letter that the Plaintiff was finally offered a job in April 1979 as Director and General Manager, Detection and Control Systems Division, Europe for Simplex Time Recorder Company (UK) Ltd., the European limb of a privately owned American corporation. It was a high powered and responsible job calling for qualities of leadership and ability to address complex issues. But, as the Judge put it "in the now familiar pattern Mr. Vernon was shaping up for a feud with Mr. Mantinoni (the Managing Director) almost before he was in post". It was about his conditions of employment and perks. The relationship with Mr. Martinoni clearly went from bad to worse. In a note of a meeting in July 1979 the Plaintiff recorded that Mr. Martinoni had told him that he was "impulsive, arrogant, self-centred, unprofessional, a disgrace, a loner, not in the team". This was followed by a confrontation between the two men in a restaurant in Halifax in front of other senior staff. And, within six months of taking up his employment, the Plaintiff was contemplating the possibility that he would be dismissed. In December 1979, Simplex decided to merge the service organisations of its two European divisions and Mr. Vernon's job would cease to exist. In November 1979 the Plaintiff consulted his general practitioner who diagnosed an anxiety state with depressive features, attributing it to work problems, and prescribed an anti depressant and tranquilliser and a repeat prescription of Mogadon. The Plaintiff ceased work on 15 December 1979, after only seven months, though his contractual term did not expire till March 1980; he obtained a severance payment of £23,000.
Two witnesses were called on behalf of the Plaintiff who had known him at Simplex, Mr. Livesey, the European Financial Controller, and Mr. Le Gassicke, who was the Plaintiff's subordinate. Both spoke in glowing terms of the Plaintiff and both said Mr. Martinoni was a difficult man. But neither had an acrimonious relationship with him, and again the Judge observed that written proofs of witnesses probably overstated the case. The Judge's final comment on this period of the Plaintiff's employment is that "one of Mr. Vernon's major problems was that he involuntary generated stress for himself by the way he dealt with his superiors. Although he did not artificially fabricate his many personal differences with those in authority, by oversensitivity, vanity and inflexibility, he made the worst of every interpersonal difficulty, and in each case ended up the loser". While the Plaintiff was not actually dismissed from Simplex, he was in danger of being so; and the fact that he only worked there for seven months speaks eloquently to the fact that they did not wish to retain his services and had reached that conclusion in a surprisingly short time.
The Plaintiff spent fifteen months looking for a job; but no offers were forthcoming; by this time his severance payment and entitlement to unemployment benefit was running out. This was the real reason why he then, in April 1981, on seeing an advertisement for the sale of a business, decided to negotiate for its purchase. The Judge rejected the Plaintiff's account that this was a planned decision and that he had first turned down several approaches to join large established businesses as chief executive.
It is unnecessary to go into any detail in relation to the purchase of the assets of Precision Circuits Ltd., which was in receivership or the formation of Paraero Ltd. which, with financial backing from British Rail Pensions Fund, bought them. But it should be noted that in the course of these negotiations, which were completed on 22 September 1981, the Plaintiff fell out with his solicitors, his father-in-law's firm, and the dispute, at any rate on his side, was very acrimonious. There was also a serious row with the Receiver, apparently because the Plaintiff did not understand where his duties lay. After the purchase there was an acrimonious dispute with the landlords, the Development Board of Rural Wales ("DBRW") about the condition of the premises and the terms of the lease. The Plaintiff found himself in a weak negotiating position, with the result that too much was paid for the business. It is plain that the Plaintiff was subjected to considerable stress throughout this period. Between 18 June 1981 and 14 September 1981 he visited his general practitioner seven times; various anti depressants, tranquillisers and sleeping pills were prescribed. On 7 August 1981 it is recorded in the notes that he was "very tense and agitated due to business worries. When describing his problems seemed very unstable almost crying with rage". But things improved once the Plaintiff started work in the business. But there were repeat prescriptions of Mogaden in September and October 1981 and March 1982 and Limbritol (an anti depressant) in October 1981 and May 1982 (although the Plaintiff only appears to have taken two of these tablets).
There were numerous problems with the business, some of which were of the Plaintiff's making, some were not. In view of the Judge's conclusion that the business would have failed when it did, irrespective of the accident, it is unnecessary to go into any more detail.
I come now to the Judge's assessment of the Plaintiff before the accident. He heard evidence from a number of friends who knew the Vernons before and after the accident and a number of those who worked for Paraero, whose evidence he was obviously impressed by. I must quote a number of passages from this part of the judgment:
"He was a man who externally was able to impress his peers and with the admiration and loyalty of his subordinates, but who repeatedly attracted the critical notice of those to whom he was answerable who defended himself by criticising their impartiality."
"He was endowed with a perfectly good if unoriginal intellect which, allied with a good memory, enabled him to retain and synthesise information well, though not necessarily to analyse it with great acuity. His personality, however, was what created the difficulties; he could manage people well, sometimes brilliantly, but he could not be managed except in undemanding situations."
"The fact is that Mr. Vernon did badly at school, poorly on balance in the army, but well in many aspects of subsequent employment, although with a self-destructive tendency in conflicts with authority."
"He was in my judgment an intelligent and competent manager capable both of impressing others and inspiring deserved loyalty in his staff, but with a serious measure of vanity and insecurity which made his personality brittle and his propensity to quarrel with those above him a constant danger to the stability of his emotions and his employment."
After reviewing some of the general practitioner's notes, to which I have referred, the Judge said:
"Neither the immediate nor the long-term pre-accident medical history demonstrates that Mr. Vernon was a sufferer from or prone to mental illness, although the extremes of his reactions to stress, when trapped by it, could lead to physiological behavioural or social disfunction. But these were tendencies which, on the evidence, never became apparent to the large number of individuals who were his colleagues and staff at work and who formed his social and family circle. While his manner and personality cannot have been to everybody's liking, he functioned socially and in employment from day to day and from year to year as a normal individual."
In this passage the Judge must be referring to the Plaintiff's time after leaving the Army, since there were two periods of serious mental illness, which was certainly apparent to those under whose command he was.
"Thus, while one can certainly say there is a history of episodic dysfunction and of inability to cope with frustration or rebuff except by depression or over-reaction, it is more a matter of terminology than of substance whether one treats this as a history of intermittent psychiatric or personality disorder or one of emotional reactions to stress associated with over-defensive personality traits. But I do not accept that Mr. Vernon can in any vocabulary be said to have suffered from long term mental illness or from a chronic paranoid personality disorder. Although stress affected him adversely, as it does many people, and although he reacted peculiarly to it, he was not ordinarily incapacitated by it."
The aftermath of the accident
The news of the accident was brought to the Vernons by the police. The Plaintiff realised that the children might be dead. When they arrived at the scene they found the Defendant distraught and did their best to comfort her; although she blamed herself, they told her it was an accident. They watched the attempts to recover the car and the bodies. Both Mr. and Mrs Vernon described feeling impotent as they watched helpless. After a while they returned to the factory and broke the news to the staff. The police surgeon gave them both some Ativan (which is a tranquilliser). There followed the agonizing business of identifying the children at the mortuary, their funerals and that of the other child, Sofie. The Plaintiff wrote a moving letter to his children which was placed in their coffins. On 23 August the general practitioner gave a prescription for 100 Ativan.
On 18 October the Plaintiff went stalking in Scotland; but at the end of the month the general practitioner certified that "Mr. and Mrs Vernon are suffering from reactive depression with anxiety following RTA in August and are in need of a holiday for a month". Both had been attending at the business since the accident. There was a good deal of evidence from friends and colleagues at work as to how the Vernons coped with their grief. Perhaps not surprisingly there were differences of perceptions. Mrs Penley thought that they were bottling it up and it was surprising they had not taken time off. Mrs Eyre said that on a number of occasions the Plaintiff was not ashamed to show his emotions and burst into tears. The Judge's comment is that both parents felt obliged to present an appearance of unwavering normality to the world and to suffer privately in their own ways.
Following the general practitioner's advice, the Vernons took a month's holiday in the Seychelles and Kenya just before Christmas. Although the holiday seems to have been a success, it is clear that both parents continued to have periods of profound grief and a local doctor advised them not to give up taking Activan. Mrs Vernon said that in the aftermath of the accident the Plaintiff suffered chronically from severe sleep disturbance, causing him frequently to wake bathed in sweat and with his pyjamas top torn.
A number of witnesses from Paraero were called to speak about the change that they noticed in the Plaintiff following the accident. What emerges is that no-one noticed much change till about April-May 1983. But thereafter a picture of gradual deterioration in competence, and he is described as finding it difficult to make decisions, `picky' and difficult to get on with, obsessed by litigation which was being conducted by the company, more longwinded and garrulous. Mr. Blunt accepts that the onset of mental illness, which is said to result from witnessing the aftermath of the accident, was delayed for several months. The Judge's finding is that "a perceptible change occurred in Mr. Vernon's disposition and capacity in the months and - more so - years following the accident and prior to the failure of the company".
Apart from a repeat prescription for Mogadon in February 1983, the Plaintiff had not consulted his general practitioner. What happened is to my mind somewhat remarkable. The Vernons had instructed solicitors to attend the inquest on their behalf and to make any claims against the insurers. In January 1983 they referred the Plaintiff to Dr. Cuthill, an experienced forensic psychiatrist for a medico legal report. Although the Plaintiff claimed that he did not realize this was the purpose of going to see Dr. Cuthill, it is obvious that he must have known it at the time. The Judge was unsure whether, if he had known, it would have made any difference to what happened, though it is worth remembering the Judge's earlier finding in relation to the job applications, that under pressure the Plaintiff was a person who was inclined to mould reality to desire.
The letter of instruction to Dr. Cuthill was not available. But his first report recorded that the Plaintiff's solicitors "feared that he was suffering from an acute post-traumatic stress disorder and were anxious for my opinion and advice as regards treatment". As the Judge commented "the image of experienced litigation solicitors, in touch with a very experienced forensic psychiatrist, `fearing' that their client was actionably traumatised and being `anxious' for a medical opinion gives perhaps some clue to Dr. Cuthill's open heartedness". He also believed that Dr. Cuthill is a psychiatrist whose human sympathy was readily engaged. And he later criticised him for assuming the hypothesis which it was necessary to test, namely that it was the witnessing of the accident that made the significant difference. Moreover, there were significant differences between what was recorded in Dr. Cuthill's notes of what he had been told by the Plaintiff and what subsequently appeared in his reports which tended to put a considerably more favourable slant on the Plaintiff's forensic case. It is understandable therefore that the Judge had reservations about Dr. Cuthill's evidence. Accordingly, it seems to me that it is to the notes that one must look for an accurate record of what the Plaintiff was telling Dr. Cuthill during the time he was seeing him. The consultation took place on 11 March 1983. In the course of taking the history, the Plaintiff broke down in such a florid display of emotion that the doctor decided he was ill and in urgent need of treatment. The Judge quoted a passage from Dr. Cuthill's first medical report dated 4 April 1991 as follows:
"He complained of feeling very tense, drained of emotional reserves, being inefficient and being unable to make decisions. He also felt very frustrated and that everything was a great effort and that he could not sustain concentration.
During this examination he was severely tense, over-excited and moderately depressed. He talked very rapidly and occasionally broke down in tears, weeping profusely. His level of intelligence seemed well above the average and he frequently expressed feelings of guilt that he could not keep control of his emotions. He seemed in need of fairly urgent help and his admission to hospital would have been indicated if he had not been about to go on a skiing holiday. I arranged with his family doctor for him to have a fairly strong tranquilliser at night time together with a hypnotic."
The Judge then commented as follows:
"It is hard to gauge whether Dr. Cuthill was readier than he should have been to credit the distress that Mr. Vernon was manifesting, or whether Mr. Vernon was manifesting a level of distress so extreme that any examining doctor might have responded as Dr. Cuthill did. In so far as it was the plaintiff who applying pressure by his conduct, I am ready to accept that there may have been a manipulative element in it, but I will have to return to the question whether such manipulative behaviour in Mr. Vernon is calculated or compulsive."
I am unable to find whether the Judge ever answered this question. He certainly held that the Plaintiff's current manipulative behaviour was compulsive. But that does not answer the question in relation to that time. It is an important question because it is fundamental to the Plaintiff's case that he was then suffering from a mental illness that required treatment and that this illness stemmed from witnessing the harrowing events of 13 August 1982.
Although the Plaintiff was recommended by Dr. Cuthill to see his general practitioner for further prescriptions of Fentazine and Noctamid (respectively a major tranquilliser and hypnotic) of which he had given the Plaintiff samples, he did not do so. Not surprisingly, Mr. O'Brien relied upon this point in indicating that the Plaintiff was nothing like as ill as Dr. Cuthill seems to have thought. The Judge attributed this to the Plaintiff's reluctance to become drug dependent. But he had not infrequently consulted his general practitioner in the past and taken the medication prescribed. There is a reference to nightmares in the notes of this consultation. But it referred to the fact that the Defendant was having nightmares, not the Plaintiff.
The day following this consultation the Vernons went for a week's skiing, during which the Plaintiff had a flirtation with Jennifer Beattie, with whom he subsequently had an affair lasting 3 or 4 years and involving several foreign holidays without Mrs Vernon.
On 15 April 1983 the Plaintiff saw Dr. Cuthill again. The latter's notes record "Felt better physically - dieting - running up to 3 miles - no effort. Feeling much more relaxed. Can cope with less stress - working at double pace without difficulty. Coping with business problems. Worried with slowness of solicitors" (this is unconnected with present case). "O/E very excitable, slightly restless, only mild depression, talking ++ slightly paranoid". He does not appear to have been prescribed or taken any medication. The notes contain no reference to his thinking about his children or the tragedy.
On 27 May 1983 the Plaintiff saw Dr. Cuthill again. The notes record "Depressive moments only mild and brief. Not brooding re accident details - can pass the site. Occasionally retreats to childs bedroom and weepy. O/E slight weeping only". In August the general practitioner prescribed Fentazine and in September the Plaintiff went on holiday to Crete with Miss Beattie; in October Mrs Vernon gave birth to a son. The Plaintiff saw Dr. Cuthill again on 30 November 1983. The notes record the following. "Still having nightmares", but those related to the business and not the tragedy. Children: still preoccupied esp. on birthday - trying to think without emotional reaction. Still has a grief episode occurring approximately every two weeks". "O/E Mildly tense - occasionally emotionally labile when talking about the children". In a letter to the general practitioner, Dr. Cuthill refers to spells of depression for some years and asks him to prescribe Tryptophan (anti depressant). This was the first time Dr. Cuthill had prescribed an anti-depressant and it was not a success; on 27 January 1984 at his next meeting with Dr. Cuthill it was changed to Merital. There is no note on this occasion referring to the accident and dead children, his anxieties related to the business. On 25 April 1984 Dr. Cuthill records "Anxious re future of business, may go into Receivership". There is no reference to the accident or children. He saw the Plaintiff again in August. The notes record "Coped yesterday with Philipa's birthday - didn't remember". He is said to be "grieving less - fewer troughs of depression". The next visit, on 14 December 1984, was after a holiday to Kenya. The notes record "Feeling much better. Bank threatening to foreclose" and "occasionally upset re memories of children eg poetry. The Plaintiff did not see Dr. Cuthill again till June 1985. The notes record "Less depressed and emotional - not crying re children. Won several commercial cases". He was said to be less hyped-up. In November 1985 the Plaintiff told Dr. Cuthill that he dreaded liquidation and only had occasional tears and ruminations about his children. The doctor recorded that on examination he was
"Tense and excited. Talks rapidly and not too coherently".
On 20 December 1985 the Plaintiff was involved in a road accident. The neurologist whom he saw reported "Mild concussional head injury....resulted in further intellectual decompensation (which presumably means deterioration) on top of an anxiety state".
On 26 January 1986 Paraero went into receivership. In the next two months the Plaintiff visited his general practitioner four times. He complained of lethargy, lack of concentration, depression about his business worries. He felt four years work and sacrifice of the children had been all in vain and on one occasion he spoke of morbid thoughts about the dead children. He was treated with Merital, Dalmane, Fentazine and later with Fluanxol, Gamanil and Dupoxine, the first two of which are anti depressants. He does not appear to have seen Dr. Cuthill again till December 1987, which was for the purpose of a medico-legal report. In 1986 Dr. Cuthill wrote commenting on his treatment of the Plaintiff with anti-depressant. He said "He did very well on Merital, but since the withdrawal of this drug coincided with his business going into liquidation he has, as you know, gone downhill".
In April 1986 he again saw his general practitioner; he wanted help from a psychiatrist in relation to his business worries. The aid-memoir which he prepared is quoted by the Judge as follows:
"Have been under considerable pressure for many years and this has increased (see list of company problems).
............
Situation now thoroughly unsatisfactory. I cannot afford to be incapacitated so long - risk losing the house, career etc., and must start job acquisition programme immediately, but am currently not well enough to do so.
............I feel I must see a specialist who has insight into business related neurosis.
I must know the extent and nature of the problem so that it is diagnosed very specifically. Also to know what drug to take for speedy remedy if this problem recur in future situation, also for own peace of mind so that I can plan more effectively career developments etc.
Dr. Cuthill was brought in by the lawyer handling the insurance claim re children, and they are commercial considerations. These other aspects need treating separately."
The Judge rejected Mr. O'Brien's submission that this meant that the damages claim was a commercial consideration. He said that the "commercial considerations" were the "other aspects". I do not follow the Judge's logic; it is not what the document says.
The general practitioner referred Mr. Vernon to Dr. Barker, who saw him fairly regularly between April 1986 and November 1988. Dr. Barker's notes and letters were admitted in evidence, but he was not called as a witness. The Judge described him as a much more probing and critical clinician than Dr. Cuthill (or Dr. Lloyd who followed him). Accordingly, he was prepared to give credence to what was in his notes; but he was not prepared in his absence from the witness box to adopt his diagnosis because the issues were recent and highly contentious. I shall have to return to this point later in this judgment. Mr. O'Brien submits that the Judge was in error in refusing to accept Dr. Barker's diagnosis. The fact, he submits, and I agree, that it is recent is nothing to the point. And the Judge had previously ruled that "medical records could be admitted as evidence of the truth of the Plaintiff's diagnosed conditions". Mr. Blunt submitted that Dr. Barker did not make a diagnosis; but the Judge seems to have thought he did.
It is necessary to refer to some of Dr. Barker's notes. It is clear that the Plaintiff ascribed his mental problems to his business worries, and factors other than witnessing the death of the children. In the notes of the first very full consultation, which took place on 22 April 1986, the only reference to the children is under the heading "Sexual history, marriage and children" where the deaths are recorded with the comment "Nanny driving Volvo car seemed to go out of control". In a letter to the general practitioner dated 22 April 1986, Dr. Barker wrote "Unfortunately his business worries in 1981 as he was setting up his most recent venture caused him considerable concern and at that time he was waking early, was irritable and mildly depressed. The death of his children in the accident in 1982 I suspect was never really dealt with in terms of emotional reaction. He took all the coping to himself and I wonder whether the marriage really fully recovered from that even although they went on to produce other children". And, on 15 May, when writing to ask for an EEG, Dr. Barker recorded that he was very depressed and retarded. He added "He has had episodes of depression in the past, notably in 1975 and again in 1980. These, however, were quite mild. In the middle of 1982 two of his children were killed in a car accident and this shattered him and he has never really been quite right since then. People have tended to feel that it was this event along with his business concerns which produced the depression".
In July, Dr. Cuthill wrote to Dr. Barker. He said "I would agree that basically he is rather a hypomanic character who seems to be capable of considerable amounts of work under pressure, but he has a history of recurrent depression when he has great difficulty in becoming motivated, and he reacts adversely to environmental pressures".
At the next consultation in August, it is recorded "13 August felt down - anniversary of episode/did feel inexplicably depressed then realised. Then wept as discussed death of children".
In September, Dr. Barker referred the Plaintiff to Mr. Mackay. In January 1987, Dr. Barker wrote to the general practitioner that the Plaintiff was very much better recently in that he was more motivated, enthusiastic and concise in his approach". He added "He has not coped with the death of the children properly. Neither he nor his wife grieved appropriately".
On 8 September 1987, it is recorded that the Plaintiff went through a report (presumably Dr. Barker's report for the purpose of the case). It is clear that the Plaintiff is well aware that if he is only suffering a grief reaction he obtains no compensation; for nervous shock he is entitled to compensation. On 19 November 1987, the Plaintiff attended with his solicitor who wanted corrections made to the report and certain letters removed from the file. It seems that Dr. Barker did not accede to these requests since no report from Dr. Barker was disclosed.
In a letter dated 21 March 1989 to the senior medical officer of the Department of Health he wrote:
"In answer to your specific enquiry may I state the following.
1. Diagnosis: he suffers from depression and is currently on a fairly high does of antidepressant. He remains rather emotionally vulnerable in relation to adverse circumstances, the most notable of which is that he is unemployed and has been unable to acquire a job commensurate with his previous work record and appropriate to his experience.
2. He certainly still has depressive symptoms but is not currently a suicidal risk. He remains deeply frustrated and unhappy at his current circumstances and at times can become quite distraught. The medical treatment however is limited because I see this as a condition which is perpetuated by his current protracted litigation over which he has little control and specific psychiatric treatment has a limited role."
I have set out these matters in some detail because Mr. O'Brien relies strongly upon them, submitting that they show depression in response to business worries, a complicated grief reaction, but not PTSD.
In October 1986 the Plaintiff was interviewed for the important post of Regional Manager for McDonnell Information Systems International Ltd. He sufficiently impressed the Vice-President for Human Resources of that Company to be put on a short list of two. But he did not get the job. He obviously must have made an impression of competence, as the Judge commented. Three days after the first interview on 13 October 1986 he was seen by Dr. Mackay, a clinical psychologist, to whom he had been referred by Dr. Barker for psychological profiling. The latter recorded "Too slow down to work: no eye contact. Verbose and obsessive". And in his report in April 1991 he said that the Plaintiff, whose condition had largely unchanged, "showed obsessionability, liability of mood, low self-esteem, social withdrawal, suicidal thought and introspectiveness - that is to say self blame for the children's death". And in his evidence he attributed the Plaintiff's condition to PTSD.
The Judge commented on the apparent inconsistency between Dr. Mackay's observations and that of the Vice-President of McDonnell Douglas. He said:
"But to describe it without more as manipulative begs the question: who was being manipulated - McDonnell Douglas or Mr. Mackay? Each was witnessing a different persona of Mr. Vernon. A critical issue is whether one or each was a reaction to his situation, the first by playing the smart executive, the second by playing the broken reed. For many individuals this would be a quite unrealistic way of putting it: the contrast would be between normality and abnormality. But for Mr. Vernon there had always been, in my view, a major element of role-playing in his executive posts. Putting it perhaps unkindly, he may have been a poseur but he was not an imposter."
Mr. O'Brien submits that clearly Dr. Mackay was being manipulated because you can present an unreal picture of illness but not of health. But this will not do; since Mr. O'Brien accepts that the Plaintiff was ill at this time, vide Dr. Barker's opinion, though Mr. O'Brien challenges the cause of the stress.
I can pass fairly quickly over the remaining history.
After his failure to obtain the McDonnell Douglas job, the Plaintiff was advised that he should give up looking for a job until he had therapy, which it was hoped would help in the frustrations he was experiencing through being unable to get one. Thereafter he devoted himself more or less full time to the preparation of his case in this action. He became totally obsessed by it.
The Plaintiff fell out with Dr. Barker in November 1988, probably because the latter would not support his damages claim. At the end of 1991 Dr. Mackay ceased to treat the Plaintiff; he had unwisely given the Plaintiff his home telephone number and his life was being made impossible by the Plaintiff's demands. Dr. Lloyd, a psychiatrist who gave evidence, took over the Plaintiff's treatment. On 24 September 1992 Mrs. Vernon left home with the children. In February 1993 she started proceedings for judicial separation and shortly thereafter sought divorce, which was granted. There was an issue at the trial as to the cause of the divorce in view of the Plaintiff's infidelity. But the Judge accepted Mrs Vernon's evidence that by the time she left home the Plaintiff, because of his illness, had then become impossible to live with. The Defendant does not challenge this finding.
The Plaintiff's condition at trial
The Judge described the Plaintiff as a tragic figure, who tires quickly, loses concentration easily, becomes emotional and combative when there is no need to and repeatedly rambles away from the point. In his evidence he was garrulous; but had very little difficulty in recalling events, although he found it impossible to organise or crystallise what he recalled so as to answer counsel's questions. There were two contrasting pictures of the Plaintiff, one given by Mr. Moxham, a social worker, and Mrs Waterman, an occupational therapist, was of a man apparently incapable of doing anything for himself; he could not get up in the morning, do the most rudimentary domestic tasks of cooking, washing up, operating the washing machine or shopping; he does not do any gardening, not even cutting the lawn. On the other hand, when Dr. Swan, one of the Defendant's psychiatrists, visited him and spent a large part of the day with him, he was able to welcome her in a reasonably competent fashion to a tolerably tidy house. After a tense and dismissive start, he relaxed and the interview went well. And the Judge observed that he was capable of responding well to positive stimuli, at least for limited periods, so that his behaviour reverts in many respects to near normality. He is physically capable of looking after himself and his house and garden; but lacks the motivation to do so. In proceedings in the County Court in which he is seeking residence and contact orders in respect of the children, he asserts he is capable of looking after them. But he is able to appear well dressed and turned out; he attended throughout the long trial and also this appeal and appeared to take an intelligent interest in the proceedings. In fact, since the end of 1986 he has become totally obsessed by his claim. He can and does drive a motor car and it appears that he still regularly goes shooting during the season.
His current drug regime, which has remained the same since May 1993, consists of Trazodone, an anti-depressant and with sedative properties; Perphenazine, a major tranquilliser (marketed as Fentazine) and Nitrazepan, a tranquilliser and sleeping pill (marketed as Mogadon).
The law
In cases of physical injury to the plaintiff, it has to be established that the tortfeasor ought reasonably to have foreseen that his act or omission was liable to cause injury of some kind to the plaintiff. He must then prove that injury of that kind, though perhaps greater in extent than was foreseeable, was in fact caused by the act or omission of the defendant. Questions of causation do not as a rule present much difficulty to the court except in cases where there is a pre-existing condition which does, or is likely in the future, to cause disability, where there is a subsequent supervening event, or where there are two co-existing causes of injury. The judge will be guided by the opinions of doctors in reaching his conclusion. The courts are also familiar with cases of mental illness following physical trauma; this is the well known post traumatic neurosis, the trauma being the physical injury.
Although the courts have long recognised that psychiatric illness suffered independently of physical injury can amount to compensatable injury, considerable limitations have as a matter policy been placed on the scope of such actions. Thus in the case of a primary victim, that is to say one who suffers nervous shock and psychiatric illness in consequence of fear for his safety, the defendant is only liable if it is reasonably foreseeable that a person of ordinary phlegm would so suffer. If that is established, then it is immaterial that the plaintiff was himself a fragile person who suffers more severely as a consequence.
In the case of a secondary victim, that is to say one who suffers nervous shock as a result of witnessing a horrifying event and is put in fear for the safety of others, the law also imposes limitations. There must be proximity both in the relationship between the primary victim who is in danger and the secondary victim and in the way in which the secondary victim learns of the event. There must be a close relationship of affection and the secondary victim must see the event or its immediate aftermath, and the event must be one which is sufficiently horrific as to be likely to cause shock to a person of ordinary phlegm. It is common ground that in this case those conditions are satisfied. But there are two further requirements. The shock must be a "sudden appreciation by sight or sound of a horrifying event which violently agitates the mind: see per Lord Ackner in Alcock v. Chief Constable of South Yorkshire [1992] AC 310 at 401, and the plaintiff must suffer from a recognised psychiatric illness. Over the last 15 years psychiatrists have come to call this illness post traumatic stress disorder (PTSD). The trauma being the horrifying event in question; the symptoms of the illness include depression and anxiety, both of which the Plaintiff suffers from.
A definition of PTSD, which is widely recognised by psychiatrists, is to be found in the Diagnostic and Statistical Manual of Mental Disorders (3rd Edition) revised in 1987 (DSM lllR). The diagnostic criteria are:
"A. The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, eg., serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence.
B. The traumatic event is persistently re-experienced in at least one of the following ways:
(1) recurrent and intrusive distressing recollections of the event (in young children, repetitive play in which themes or aspects of the trauma are expressed),
(2) recurrent distressing dreams of the event,
(3) sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative (flashback) episodes, even those that occur upon awakening or when intoxicated),
(4) intense psychological distress at exposure to events that symbolize or resemble an aspect of the traumatic event, including anniversaries of the trauma.
C. Persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following:
(1) efforts to avoid thoughts or feelings associated with the trauma,
(2) efforts to avoid activities or situations that arouse recollections of the trauma,
(3) inability to recall an important aspect of the trauma (psychogenic amnesia)
(4) markedly diminished interest in significant activities (in young children, loss of recently acquired developmental skills such as toilet training or language skills),
(5) feeling of detachment or estrangement from others,
(6) restricted range of affect, eg., unable to have loving feelings,
(7) sense of a foreshortened future, eg., does not expect to have a career, marriage, or children, or a long life.
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by at least two of the following:
(1) difficulty falling or staying asleep,
(2) irritability or outbursts of anger,
(3) difficulty concentrating,
(4) hypervigilance,
(5) exaggerated startle response,
(6) physiologic reactivity upon exposure to events that symbolise or resemble an aspect of the traumatic event (eg., a woman who was raped in an elevator breaks out in a sweat when entering any elevator).
E. Duration of the disturbance (symptoms in B, C and D) of at least one month.
Specify delayed onset if the onset of symptoms was at least six months after the trauma."
If a plaintiff is suffering from PTSD, and he is sufficiently close in relationship for it to be actionable, it is no defence to the defendant that the plaintiff was a fragile person who is likely to suffer more severely. This is simply an extension of the principle that the tortfeasor must take his victim as he finds him: see Bryce v. Brown [1984] 1 AER 947.
But although it is foreseeable that a person who has witnessed an accident in which a loved one is killed is likely, indeed almost bound, to suffer the pangs of grief and bereavement, that is not something that sounds in damages: Hinz v. Berry [1970] 2 QB 40. Nor in my judgment does it become actionable even if the grief becomes so severe as to be regarded as abnormal and gives rise to psychiatric illness, the symptoms of which may include depression and anxiety. Such an illness is referred to as pathological grief disorder (PGD); normal grief is usually spent in six to nine months from the bereavement. In Alcock's case at p. 409 Lord Oliver said:
"The law will not compensate such a person for the mental anguish and even illness which may flow from having lost a wife, parent or child or from being compelled to look after an invalid although there is a statutory exception to this where the victim dies as a result of the accident and the victim is his widow or minor unmarried child....
Beyond this, however, the law in general provides no remedy however severe the consequence of the distress or grief may be to the health or well being of the third party and however close his relationship to the victim."
There are in fact two separate illnesses, PTSD and PGD; their symptoms may in some respects be similar, i.e. include depression and anxiety, but their aetiology is different. The Plaintiff in this case can recover if he can show that his present condition is PTSD, that is to say was caused or substantially contributed to by the shock of witnessing the event. He cannot do so if his condition is due to a grief reaction or other causes such as reaction to business stress. This is illustrated by the decision of this Court in Calascione v. Dixon Unreported Transcript 30.7.93. The plaintiff suffered both PTSD, having seen the aftermath of an accident in which her son was killed, and PGD. The PGD was obviously based upon the death and bereavement, but normal grief had become abnormal in response to subsequent events which emerged at the inquest and subsequent criminal trial of the defendant. She recovered damages for the PTSD, but not the PGD.
In Hinz v. Berry the plaintiff was a robust person and it was not altogether clear whether she suffered abnormal grief, though she did suffer what would now be described as PTSD. Lord Denning MR, at p. 42H said:
"In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."
and at p. 43A
"Somehow or other the court has to draw a line between sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable. The way to do this is to estimate how much Mrs Hinz would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away: and compare it with what she is now, having suffered all the shock due to being present at the accident. The evidence shows that she suffered much more by being present.
Lord Pearson at p. 45E said:
"It should not be for the whole of the mental anguish and suffering which she has been enduring during the last five or six years. It should be only for the additional element which has been contributed by the shock of witnessing the accident, and which would not have occurred if she had not suffered that shock. It is a difficult distinction to draw, but I think the judge has laid a proper foundation and has found a right ground of decision, namely, that where there is an extra element which has been added by the shock of witnessing the accident, that is a proper subject of compensation."
This passage undoubtedly suggests that the plaintiff's grief and anguish was abnormal since it lasted for 5 or 6 years.
Mr. Blunt submitted that it is only normal grief that has to be disregarded and not the grief reaction that is in fact sustained by the Plaintiff. The Judge accepted this submission, though he then went on to consider the alternative. I cannot accept this submission. It does not seem to me to have any logical basis. I do not see how a defendant can be required to take a plaintiff as he finds him, in this case a fragile personality, who was liable to and does react badly to stress, which is an individual and subjective approach, but disregards the plaintiff's actual reaction to bereavement which may well be more severe because of his personality, and have regard only to some objective standard of a reasonably robust man.
The Judge thought his conclusion was supported by my decision in Bryce v. Brown. But with all respect to him, that case had no bearing on this problem. It was a straightforward case of what would now be regarded as PTSD; there was no question of grief or bereavement, since the plaintiff's daughter, who was apparently horribly injured in the accident, in fact made a good and fairly speedy recovery. But the plaintiff herself suffered much more severely because she had a fragile personality.
What the Plaintiff is required to do, in my judgment, is to show on balance of probability that the illness from which he is suffering is caused, or substantially contributed to, by the shock, as defined by Lord Ackner, of witnessing the accident. Questions of causation and aetiology in psychiatric medicine are often very difficult because psychiatry is not a precise science. One could find no better example of this than the present case. After 68 days of evidence, about 22 of which seem to have been devoted mainly to medical evidence, the Judge found himself unable to accept the opinions of the psychiatrists. Instead he took various parts of their evidence and fitted them to what he perceived to be the pre accident personality of the Plaintiff. The fact that the task is difficult, and I suspect in this case impossible, does not relieve the Plaintiff of establishing his case; and if he cannot do so with reasonable clarity, it seems to me that he should fail.
Here there were at least five possibilities. (1) That the Plaintiff was suffering from PTSD. (2) That he was suffering from a grief reaction which became pathological. (3) That he was suffering from a combination of PTSD and PGD. (4) That he suffered either PTSD or PGD, but this was superseded by worry and anxiety caused by business stresses. (5) That the PTSD and/or PGD rendered him more vulnerable to the stresses which he had to face when his business collapsed and he was unable to find employment.
This is not a case where damages for grief, even if it causes mental illness, is too remote in law. On ordinary grounds of foreseeability it is not too remote. But as a matter of policy the law stops short of giving damages in such a case; it is uncompensetable loss. In my opinion it does not help to say that the Defendant was in breach of duty to the Plaintiff because he was in sufficient proximity to the primary victims, and that he suffered mental illness as a result. And I do not think the case of Page v. Smith [1995] 2 WLR 644, which was not relied upon by the Plaintiff, assists. That was a case of a primary and not a secondary victim, and the limitations which apply in the latter case, including the limitation on recovery of damages for grief and bereavement, do not apply.
In my judgment, the decision of the House of Lords in Bonnington Castings v. Wardlaw [1956] AC 613 is of some assistance in illustrating the proper approach. The plaintiff was suffering from pneumoconiosis; there were two sources of dangerous dust in the defendant's factory which had contributed to the plaintiff's condition, one in respect of which they were in breach of statutory duty, which can be referred to as the actionable dust; in respect of the other they were not (the non-actionable dust). The House of Lords held that the onus was upon the plaintiff to prove that the actionable dust caused his illness in the sense that it made a material contribution to the disease. In the present case there is only one actionable cause of the symptoms experienced by the Plaintiff, PTSD.
The Judge's conclusions
The Judge found himself unable to accept the opinions of any of the medical witnesses called before him. At p. 269 he said:
"I do not consider that I am limited to answering yes or no to a particular diagnosis posited by one or other party. The question I have to answer is the one posed above. Among the competing diagnoses and aetiologies are the signposts to a conclusion which must in the end be my own."
At p. 273 he said:
"I believe that there is force in the contention made on the defendant's behalf that the expert witnesses who have treated the plaintiff, Dr. Cuthill and Dr. Lloyd, both psychiatrists, and the clinical psychologist Mr. Mackay, have all of them assumed the very thing which the plaintiff in this action is required to prove, namely that he is suffering from PTSD. All three were, of course, treating him, and Dr. Lloyd inherited him as a patient at quite a late date. So it is principally upon Mr. Mackay and Dr. Cuthill that the criticism rests, and particularly upon the latter since it was he who switched from medico-legal diagnosis to treatment in reaction to Mr. Vernon's distressed presentation at the first interview. I am not prepared to accept this as a valid critique of the professionalism of any of these witnesses, but it does present me with the problem that each has been working from an established hypothesis rather than setting out first to test the hypothesis against others. However, the two psychiatrists called for the defendant, Dr. Swan and Dr. Gaind, can be seen for reasons which I have already given to have become comparably `parti pris' again not through lack of professionalism but through the osmotic process which is an almost inevitable incident of litigation of this intensity. This is why I have found assistance in the evidence of all the expert witnesses but do not believe that any one of them has offered a satisfactorily comprehensive account of Mr. Vernon."
And there was the earlier criticism of Dr. Cuthill, to which I have referred.
The Plaintiff's primary case had been that he was suffering from PTSD complicated by a grief reaction. The Judge did not find that the Plaintiff was suffering from PTSD, at least as defined in DSM 111R. In order to do so, he said that he would have to determine the conflict between the impulse that grief often brings to revisit the scene of death and the process of avoidance associated with PTSD. He would have to consider the significance of the Plaintiff's river crossings during the holiday in Kenya, which the Defendant's experts said was a contraindication of PTSD. And he might have to resolve the dispute as to the significance of dreams. The Plaintiff never claimed to dream about the actual event and there is no contemporaneous record from Dr. Cuthill's notes that he experienced any nightmares relating to the accident; although later he said he had nightmares which Dr. Mackay thought symbolically related to the accident.
He took the view, I think correctly, that it is possible to diagnose PTSD without rigid adherence to the criteria in DSM 111R. And this is obviously so if there is no competing diagnosis. The difficulty with this approach is that the less the Plaintiff's case fits these diagnostic criteria, the more difficult it is for him to satisfy the burden of proof.
The Judge was much influenced by an article by Dr. Murray Parks, entitled Bereavement. The article is not concerned with PTSD, but normal and abnormal (complicated) grief reactions or PGD. The author identifies some of the risk factors which predispose a person to such a reaction. There is no doubt that the Plaintiff qualified both as to the circumstances of the death, being sudden, unexpected and untimely, and in horrifying circumstances, though actually witnessing the death is not one of the factors. The relationship with the victims and the previous personality of the Plaintiff all predisposed him to a severe and complicated grief reaction. But I agree with Mr. O'Brien that this article does not assist in the differential diagnosis of PTSD and PDG. And Dr. Cuthill's evidence that someone who is predisposed to PDG because of their fragile personality is also predisposed for that reason to PTSD, does not assist.
As I have already indicated, I do not agree with the Judge's construction of Hinz v. Berry, namely all that he had to discount was the normal grief that a reasonably robust person who suffers at the bereavement. But he continued:
"If the right test is personal to the plaintiff, then with more hesitation I nevertheless hold that more probably than not Mr. Vernon would have grieved but eventually recovered as his wife did, had he learnt of the loss of his daughters but not actually witnessed it. Such a judgment can be no more than educated guesswork (which is another reason for thinking that the law does not call for it); much would depend, for example, on how the news was broken; but I find it possible to visualise a less immediate awareness permitting Mr. Vernon to cope, as in the event he did not, with the loss."
With all respect to the Judge, I do not think guesswork, educated or otherwise, is sufficient to discharge the burden of proof, especially when he does not indicate what evidence he relies upon as educating his guess. Mr. Blunt sought to support this finding by a reference to a later passage in the judgment where, I think, the Judge expressed his final conclusion:
"It is because of the prominent role played by Mr. Vernon's personality in the eventual loss of function that I think it safe to conclude that it was witnessing the accident that brought [his present position] about. The peculiarity of Mr. Vernon's case lies in the complexity and fragility of the man: throughout his life personality and mental state have reacted upon one another, so that one cannot look in him for text book conditions in isolation but must try, with the help of expert evidence, to understand as best one can the whole individual. Thus although his condition from the start included features both of post traumatic stress disorder and of pathological grief, it was not a text book example of either condition. The principal defect of the trauma, mediated by these features, was on a personality which, unable to cope with them, has given way to what is now an inexplicable mixture of psychiatric disorder, personality disorder and, I strongly suspect iatrogenic basis in the manifestation of both. It is those paranoid and neurotic traits demonstrated by the defendant's evidence but not amounting before 1982 to true disorders which have been inflated by the trauma of the index event into major psychiatric and personality disfunctions."
But I cannot find any support in this passage for the conclusion that if he had not witnessed the event he would have grieved normally. It seems to me rather to point to the impossibility of determining that it was PTSD, even in its broadest sense, as the cause of the Plaintiff's problems. This in effect was the burden of Dr. Cuthill's evidence, he said it was impossible to distinguish between a grief reaction and PTSD in the Plaintiff's case. And he conceded in cross-examination that in his first three consultations with the Plaintiff that there was no symptom recorded in his notes that was necessarily referable to PTSD as opposed to grief reaction.
Having not accepted the opinions of any of the doctors, the Judge proceeded to make his own diagnosis. Mr. Blunt says he was entitled to do so; what he was doing was making findings as to the Plaintiff's pre-accident personality and applying to that personality principles which he culled from the medical evidence. One of the problems about this is that the psychiatrists were able to find an answer to almost any proposition depending upon what precise view was taken of the history of the Plaintiff's personality. Thus the Judge explained the fact that the Plaintiff did not avoid the scene of the accident, avoidance being one of the classic and necessary symptoms of PTSD, on the basis that it was "very much a piece with Mr. Vernon's personality and acquired sense of himself that he would have sought to outface the event by passing the spot, endeavouring - as he was doing socially and at work - to create an artificial sense of normality". That hardly seems to explain how the Plaintiff could return to the scene of the accident a few days after it occurred to take photographs with a view to making a possible claim against the Local Authority for having a dangerous road, or even going into the river to retrieve the accident warning sign from the car.
There is an important passage in the judgment at p. 210. The Judge quotes from a part of the Plaintiff's evidence where he speaks of a fear while standing on the river bank that he would be unable to cope with his despair and control his business, and a premonition of its subsequent collapse. The Judge's comment is as follows:
"For the most part the professional witnesses have treated this account, explicitly or implicitly, as another piece of post hoc confabulation. I am not so sure. The self-justificatory exegesis in the second part of the passage (`My subsequent behaviour and feelings should be considered in the light of this premonition' etc.) is one of many examples of Mr. Vernon's tendency to assert intellectual control over everything he is describing. But the `premonition' itself in my judgment rings true. This was a crisis of utter impotence without precedent in Mr. Vernon's life."
A number of points arise on this passage. But it is an example of the Judge rejecting what appears to be the unaminous or virtually unaminous views of the professional witnesses. Secondly, he appears to be accepting that the Plaintiff did have these thoughts. If so, as Mr. O'Brien pointed out in his reply, it seems to indicate a process of rationalisation which is inconsistent with his mind being violently agitated by the sight, in Lord Ackner's phrase.
The Judge returned to this point at p. 286, where he said:
"Mr. Dougal Mackay, a clinical psychologist who has been treating Mr. Vernon, suggested - and I find this useful - that the stress-prone, competitive and controlling type of personality which is Mr. Vernon's may retreat from unmanageable stress into `learned helplessness' (see Human Helplessness ed. Garber and Seligman, 1980) and that such a personality, faced with feelings of helplessness, may react dysfunctionally to grief (see Worden, Grief Counselling and Grief Therapy, 1982).
The article "Human Helplessness" is concerned with coronary heart disease; the particular point is that Type A people, who the Judge thought included the Plaintiff, react badly to stress which they feel powerless to control. But I do not think there is any evidence that a sense of powerlessness to control a situation is a symptom of PTSD.
Although the Judge accepted Mrs Vernon's account of the Plaintiff's sleep disturbances which I have quoted, and the Plaintiff's own account of nightmares in which he found himself grappling with intractable problems and physical dangers, he was not prepared to allocate them to the index event. This must surely be right, since the Plaintiff made no mention of nightmares to Dr. Cuthill till November 1983, when he attributed them to business worries. This is perhaps all the more striking when he had referred in the first consultation to the Defendant's nightmares of the accident.
There is ample evidence in Dr. Cuthill's and Dr. Barker's notes that it was the Plaintiff's worries about his business that was the major cause of stress in 1983 and onwards. That is what the Plaintiff was telling both doctors and I see no reason to doubt it. There is an almost total absence of reference to the children in Dr. Barker's notes. The comparatively few references in Dr. Cuthill's notes seem to relate to grief. They do not indicate obsessional or intrusive thoughts about the accident and its circumstances, which is another hall mark of PTSD.
Basing himself on the lay evidence, the Judge found that there was a change in the Plaintiff in the months and years following the accident and before the collapse of the business. But that does not provide a reason to the cause of the change. At p. 290 the Judge concluded:
"Precisely because these have been reactive and not endogenous changes, they have waxed and waned in relation to other life events. Thus during the lifetime of Paraero, and in spite of the succession of major problems bedeviling it, the stimulus of the job enabled him to function adequately in it, although not with the same grip as before; and correspondingly when the business failed, the anchorage it had provided went with it, with the result that from then on - apart from the again characteristic rally which nearly got him the McDonnell Douglas job - he sank into the kind of demanding helplessness which has seen the collapse of his marriage and the fading of all serious employment prospects. Of all these things the witnessing of the accident was not the sole cause, but it was the initiating cause of an uneven but perceptible sequence of mental deterioration and personality collapse in an already vulnerable individual."
In the absence of acceptable medical evidence, I do not think the Judge was justified in reaching this conclusion, any more than his educated guess that, but for seeing it, he would have grieved normally. It seems to me the Judge was presented with an almost impossible task. He sought to tease out of a welter of evidence a case that was very far removed from the classic case of PTSD.
Although I disagree with his conclusions on the main and subsidiary issues, I would wish to pay this tribute to his judgment which in many ways is a tour de force. It reads like a biography as he traces in great detail through the Plaintiff's career, interspersing the factual material with observations on the Plaintiff's personality at every point in the history. He was not assisted by a clear definition of the issues, which seem to have shifted somewhat in the course of the trial. Nor was he assisted, as he should have been, by disinterested evidence from the medical professional witnesses who were allowed to range unchecked into almost every aspect of the case. In my opinion in this type of case in particular there is much to be said for the practice sometimes adopted in the Family Division of there being a psychiatrist appointed by the Court. In the field of psychiatry it may be more difficult for those who have treated the Plaintiff to approach the case with true objectivity. That was certainly the case here. Likewise, so far as the Defendant's doctors were concerned, the Judge thought they were parti pris. This may in fact at least have been due to the very extensive reading of the background of the case, at least so far as Dr. Swan is concerned. Certain it is that the case would have been much shorter and would have been kept in more manageable bounds. But at present the Rules of Court do not permit this course. Unless the parties agree on a psychiatrist - these parties never would have - the Court has no power to make such an order.
Mr. O'Brien submitted that the Judge ought to have accepted Dr. Barker's diagnosis, since he commended his perception and, unlike all the witnesses who were called, he was not affected by bias. It is not altogether clear what Dr. Barker's diagnosis was, though I think it is clear that he lent no support to the Plaintiff's case that he was suffering from PTSD; rather it seems that he regarded the Plaintiff as a stress prone individual who was reacting to his business worries. I do not think the Judge was bound to accept his diagnosis in the absence of Dr. Barker as a witness. What weight he gave to his opinion was a matter for him. But I consider that Dr. Barker's notes and letters are very important because they make it clear what was affecting the Plaintiff's mind from April 1986 onwards till the Plaintiff fell out with him; this was his business worries.
The Plaintiff had remained functional in the Judge's definition of being able to attend to his business from the time of the accident till its collapse, it was only following that and his failure to get the McDonnell Douglas job that he went seriously downhill and became dysfunctional in the sense that the doctors advised him to give up looking for work, because he was becoming so depressed by his failure.
I have come to the clear conclusion that the Plaintiff did not discharge the onus that was upon him of proving that the shock of witnessing the accident caused or substantially contributed to the illness from which he was suffering. That it did so, or was the initiating cause, without which presumably the other events in his life would not have had the same effect on him, seems to me to be speculation and guesswork. And for these reasons I would allow the appeal and dismiss the Plaintiff's claim.
In view of the fact that Evans and Thorpe LJJ have reached an opposite conclusion on this aspect of the case and would dismiss the appeal, I must consider the separate heads of damage, interest and costs in respect of which the Defendant appeals.
Loss of earnings
It is common ground between counsel that the proper approach to the assessment of loss of earnings, which depends both on what the Plaintiff himself would have done but for his illness and also on how third parties would have reacted to him, is to be found in the recent decision of this Court in Allied Maples Group Ltd. v. Simmons & Simmons [1995] 1 WLR 1602. The Plaintiff must prove on balance of probability that he would have sought employment at a particular level of employment; if he establishes that, then the Court has to assess the chances of the Plaintiff obtaining and keeping such employment. This must be "A real or substantial as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other": (see my judgment in the Allied Maples case at p. 1614D).
Mr, O'Brien submitted that while it was probable that the Plaintiff would have applied for jobs at the level of his post at Simplex, that is to say in general management in a multinational company, he had no real chance of obtaining it. This I think the Judge accepted, and it certainly seems to me to be correct.
Secondly, Mr. O'Brien submitted that the Plaintiff probably would not have set his sights any lower than Simplex, with the result that he is not entitled to any loss of earnings. For this proposition Mr. O'Brien relied upon the Plaintiff's own evidence that he would not have considered anything lower than this.
The Judge rejected this submission; he said that in his "state of compulsive self-aggrandizement it was not surprising that the Plaintiff said this". He was satisfied that "but for the accident he would have set his sights at a more modest level had it become apparent that it was necessary, compensating for it so far as he could by presenting the job to himself and others as more prestigious than it was". He said that he would probably have found employment by June 1987. Mr. O'Brien challenged these findings; but in my judgment it was open to the Judge to make them.
The real issue in this appeal is whether the Judge took the right salary levels for such a more modest level and whether he made a sufficient discount for the chances that he would have difficulty in retaining employment, and finding fresh employment, and other matters that would bear upon his ability to earn steadily at this level for the rest of his working life.
So far as salary levels are concerned, the expert evidence was limited to part of the report of Coopers & Lybrand, the bulk of which was concerned with the reasons for the failure of the Company's business, which was placed in receivership in January 1986. The part concerned with loss of earnings was the work of Mr. Seddon, who was called as a witness on day 67 of the hearing. It is right to record that by that time the Judge, properly and understandably, had placed limits on the time that was to be taken by further evidence, including cross-examination.
The Plaintiff's claim that he would have found fresh employment, but for his illness, therefore has to be considered on the basis which occurred in fact, namely, against the background of the receivership in January 1986. Cooper & Lybrand's primary assumption, that he would have re-entered the jobs market with a record of success of a company behind him, is no longer relevant.
They also made, however, an alternative assumption that the business would have failed in any event, and they addressed this "alternative scenario" in paragraph 169 of their (second) Report. They did so by reference to their primary view that the Plaintiff "given his background in sales and marketing" would have found the most ready opportunities in making a return to sales management within a large multinational company (paragraph 154, amplified in paragraph 155). This would have led to a total gross remuneration, including basic salary and benefits rising from £77,000 p.a. in 1987/8 and peaking at £120,000 p.a. in 1990/1, then reducing to £80,000 per annum from 1992/3 by when tougher market conditions would have excluded the commission element.
Their view as to the alternative scenario of 1986 business failure was expressed in paragraphs 170-1:
"170. We believe that Mr. Vernon would, despite the failure of his business, have been regarded as an impressive and viable businessman, who would have had no difficulty in finding worthwhile employment.
171. In our opinion, whilst the fact that the failure of his business would have affected the level at which he could have expected to find employment, he would still have been able to find a position similar to that outlined in paragraphs 153-155 above although at a lower salary."
On this basis, the estimated total gross salary and commission rose from £60,000 in 1987/8 to £80,000 in 1980/90, then declining to £70,000 from 1992/3.
The Judge found that this alternative claim was the only basis for calculating past loss of earnings, on the evidence before him, and he adopted it accordingly. The net figures, which included benefits but also allowed for deduction of tax and N.H.I., were at an annual rate of £45,302 for 1987/8 (from June 1987 only) and £59,104 for 1993/4 (taken from Coopers & Lybrand's 2nd Report, paragraph 176), with £49,253 for the part year April 1994 to January 1994 (date of trial).
As to future loss of earnings, the Judge concluded that he would have worked until he was 65; he took £59,104 as the multiplicand and applied a multiplier of 10 (which he discounted to 9.5 for reasons which I shall explain) for the remaining twelve and a quarter years of the Plaintiff's working life.
Mr. O'Brien challenges this conclusion as to salary levels on the ground that it was invalidated by the Judge's own earlier findings that the Plaintiff, far from being "an impressive and viable businessman" as envisaged by the author of the report (paragraph 170), and apart from the consequences of the accident, would have been a flawed personality with an unbroken record of failures behind him, and in particular a propensity for quarrelling with his immediate seniors in a line of management which invariably led to him losing his job, whether or not he was dismissed from it. He submits that he would not have been likely to obtain the kind of employment envisaged by Mr. Seddon, even at the lower salary level, particularly in the light of the Judge's express finding that he found it "very difficult to envisage a steady climb of the kind projected by Mr. Seddon", which be it noted applied equally to the alternative scenario. He contended that any employment which the Plaintiff did obtain would have been short-lived. Since Mr. Seddon claimed no expertise in jobs or salaries at any lower level than his alternative scenario, Mr. O'Brien submits that there is no evidence on which any lower figures can be based, and that this head of claim therefore should be disallowed.
Mr. O'Brien also developed an alternative submission, which is to the effect that the only evidence of the Plaintiff's likely earnings at a lower level than was envisaged by Mr. Seddon is his "track record" between 1969 when he left the Army and 1980 when he ceased to be an employee, and if thought relevant his earnings as managing director for the company (Paraero) from September 1981 until it failed in January 1986. These figures, up-dated for inflation, are the best evidence, he submits, of the salaries likely to be paid after 1986 for the kinds of jobs for which the Plaintiff would have been most suitable.
Mr. Blunt's main submission was that the Judge was correct to take the only figures that were in evidence before him, and he noted that the Defendant's expert evidence, the Robson Rhodes' Report, did not dispute them; it said merely that the author had "some doubts whether by 30 September 1986 his earning capability would be £75,000 per annum" (paragraph 11-26), but again this was upon the same assumptions as Mr. Seddon made. There was no cross-examination of Mr. Seddon on his alternative figures, but in view of the Judge's ruling on time limits this is not significant. The relevant fact is that no other figures were placed before the Judge by or on behalf of the Defendant.
Regarding the alternative submission that estimates might be based on the actual earning figures up to 1980, or 1986, Mr. Blunt submitted that if this method was adopted, then the calculations should be made in a different way from that suggested by Mr. O'Brien. Before indicating what the main differences were, I will consider what should be this Court's approach in the light of the main submissions referred to above.
In my judgment, there is substance in Mr. O'Brien's contention that Coopers & Lybrand, even in the alternative scenario, took the Plaintiff more at his own estimation than as the person whom the Judge found that he would have been, the accident apart. This makes some down-grading of the figures inevitable, but it does not follow, in my judgment, that there is no evidence upon which estimates can be made. At the very least, Mr. Seddon 's alternative figures provide a ceiling which must be some distance above the appropriate figures for employment at a lower level. And I would go further, holding that the pre-1986 actual earnings, adjusted for inflation, do provide a sufficient basis for estimating what corresponding earnings would have been in mid-1987 and thereafter.
As for the individual issues raised as to these calculations, I would hold as follows. First, the average earnings index rather than the r.p.i. (retail price index) seems the more appropriate index to use. Secondly, the index should be applied to the salary at the end of the period of employment, rather than at the beginning when the salary was fixed. This is because the assumption must be that the salary at the end of the employment was what his then employer thought was appropriate in current market conditions. There might be special circumstances in any particular case, such as a fixed salary for a specified period, or some other reason why the end-salary was below current market levels, but there is no evidence of any of these. Thirdly, the salary which the Plaintiff was paid as managing director of the Company is not directly relevant, because that post was "general management" and Mr. Seddon expressly left that category, as opposed to sales management, e.g. as marketing director, out of account. Nevertheless, that salary was agreed in 1981 by the British Rail Pension Fund who provided the venture capital and their agreement continued until 1986. This should not be wholly disregarded, in my judgment, in estimating what the Plaintiff's value in the employment market was. The same comment can be made in relation to the Plaintiff's employment with Simplex.
There is no agreement on the figures; indeed there is a wide margin between them. Mr. Blunt criticises the Defendant's figures. He makes the following submissions:
(1)That the Defendant has understated the benefits, having taken the concessionary tax rate, rather than the actual benefit to the Plaintiff. I consider there is force in this criticism.
(2)That the Defendant's figures take the date when the Plaintiff left the relevant employment, and not his starting date. For reasons already given, I do not agree.
(3)That the Defendant's figures are calculated by applying the relevant indices to the previously calculated net figure, instead of adjusting the figures annually for tax. While this is correct, it is only possible to approach the figures with a broad brush.
On the other hand, Mr. O'Brien criticises the Plaintiff's figures for the reasons I have already given and because he submits that the figures for benefit are too high. These were never proved or agreed; in some cases the pension figures were contributory; the car and petrol figures appear to be arbitrarily chosen by the accountants and not based on evidence; this is not surprising, since this was not the way the Plaintiff put his case in the Court below.
The best the Court can do, in my opinion, is to use these figures to arrive at a net salary level, including benefits which appear to fit the Judge's findings. I would take this at £30,000 for the year April 1987 to April 1988. In my opinion this is certainly not ungenerous to the Plaintiff since it represents substantially more than the Defendant's updated figures for Pye TMC, which is the most relevant of the pre-1980 salary levels.
Discount
These figures assume continuous employment, or at least no period without payment of the appropriate salary. Mr. O'Brien submits that they should be substantially reduced so as to take account of periods between different jobs, the increasing difficulty of obtaining fresh jobs after each interruption, and the increasing likelihood that he would be unable to find employment at all. Moreover, Mr. Seddon accepted that it would be a considerable handicap that the Plaintiff could not produce a reference from a line manager under whom he had worked. The discount of 5%, which the Judge made to reflect these matters, he submits, was quite inadequate and barely takes into account the Judge's conclusion that there was a chance that he would in fact find employment in future, albeit at a much lower salary. The Judge proposed to counterbalance the discount with the chance that the Plaintiff might in fact after all get employment at a higher rate. I have to say that I do not think this was a realistic chance. In my judgment, having regard to the Judge's own findings which I have set out earlier in this judgment, and the following two comments by the Judge, Mr. O'Brien's submissions must be right.
At p. 293 the Judge said:
"But apart from the possibility which we all face of some unexpected and dreadful event in our lives, and to which Mr. Vernon was more vulnerable than many others, had the accident not happened he would have remained accident-prone following the probable failure of Paraero in 1986 and his re-entry into the executive employment market. The auguries for finding highly-paid executive employment and keeping it steadily until retirement were not good, whether one ascribes the problem, as Mr. Vernon does, to incompetence among superiors or, as I do, to an inability in Mr. Vernon to accommodate his self-esteem to the sort of challenge from above which, justified or unjustified, is largely unavoidable in corporate structures."
And at p. 300:
"Much more probably he would have been at risk in the future, as he had been in the past, of locking horns unnecessarily with his superiors, jeopardising jobs in which he was otherwise capable of functioning perfectly well and sometimes exceptionally well as an organiser and leader of others."
Mr. O'Brien further submits that the Plaintiff's earning capacity should be judged in the light of his actual achievements and not the inflated and distorted accounts that he was prone to giving when he was searching for employment. There is some force in this point; but I think the real danger from the Plaintiff's point of view is that if he continued to embroider the truth in the same way as he had done in the past, when he fell out with his employers and they wished to terminate his services, they would have grounds for dismissal if they discovered, as they might well do, that he had obtained his employment by misrepresentation.
Mr. Blunt submits that the Judge's discount can be justified on the basis of his overall assessment of the Plaintiff and the fact that as each of his pre-Paraero employments were terminated he received compensation so that there were not long periods without income. But this would be only a minor palliative, if the scenario envisaged by the Judge eventuated. Moreover, it is well known that executives who lose their employment late in their careers often find it extremely difficult to find employment, even without the incumbrance of a personality like the Plaintiff's. I acknowledge that this Court should not lightly interfere with a Judge's assessment of discount to take account of these matters, in the same way that we do not lightly interfere with the multiplier, unless we are satisfied that he is plainly wrong. In my opinion, a multiplier of 10 (discounted by 5% to 9.5) in respect of twelve and a quarter years of working life is in any event very high, and it does not reflect the factors to which I have referred.
I consider that the pre-trial figures should be discounted by 20% and not 5%. For the future loss I would take a multiplier of 9. This represents a 12¼ year period discounted at a rate of 4.5%. It does not take account of the vicissitudes of life, such as death or disablement which would normally be taken into account in setting a somewhat lower multiplier. However, since I am proposing to make a substantial discount in the multiplicand for future loss, I have taken that factor into account, together with the other matters to which I have already referred in arriving at a discount of 40% on the post trial multiplicand.
The relevant calculations therefore are:
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Costs of care
The first item under this head criticised by Mr. O'Brien is the sum of £20,000 awarded in respect of Mrs Vernon's services from 29 January 1986, the date of Paraero's collapse, and 30 September 1992, when she left home. The Plaintiff's case in respect of Mrs Vernon's services was that she was entitled to £9,304 in respect of additional domestic or `nanny' services; it was said that she was entitled to be paid for this because it was over and above what she would have done any way as a wife, and came about because of the Plaintiff's lack of motivation and helplessness in looking after himself. In addition £69,975.00 (15550 hours at £4.50 per hour) was claimed in respect of Mrs Vernon's secretarial services. The Judge said this latter claim was unsustainable. But he added: "Mr. Vernon had always used his wife as an unpaid personal secretary, dictating memoranda and correspondence to her. It was part of the domestic relationship and it deserves to be reflected as such. The best way I can do this is to enlarge the sum which I allow to the Plaintiff, as a debt owed to his ex-wife, for the additional work thrust upon her and done by her to take care of Mr. Vernon in his more than previously dependent and demanding state. I would place a value of £20,000 on this element as a whole". It is far from clear to me why the Judge increased the figure from £9,304 to £20,000, having held that the claim for secretarial services was unsustainable. I see no justification for increasing the amount in respect of the nannying or domestic services over and above the amount claimed. The basis of the claim for secretarial services was in the main relating to the preparation of the Plaintiff's case. If that was a justifiable expense at all and was reasonably incurred, as to which there must obviously be some doubt, it is recoverable, if at all, as costs in the action.
Mr. Blunt sought to justify this extra £10,696 on the basis that Mrs Vernon did extra secretarial work such as answering bread and butter letters and making job applications over and above what she had previously done and in respect of which the Plaintiff was more difficult and demanding than he had previously been. If this is indeed what the Judge intended to compensate Mrs Vernon for, it is far from clear, and in my view there is a very slender basis for it on the evidence. It does not justify the award of the not inconsiderable sum of £10,696, which the Judge made no attempt to quantify, which represents over £1,600 a year tax free over the period.
Future care
The Judge awarded under this head £51,452.50 for occupational therapy, £41,574 for help around the house, and £3952 for the cost of employing a gardener. He rejected a claim for £32,545 for the cost of employing a nanny on the basis that the Plaintiff had claimed in proceedings in the Children Act proceedings that he could cope perfectly well if the children came to him. He also rejected a claim for £6,444 for secretarial services on the basis that the Plaintiff did not need a secretary.
The Defendant challenges the awards made by the Judge.
Occupational therapy
The award under this head was based upon a report by Mrs Waterman, who was an occupational therapist. She had visited the Plaintiff on one occasion. The Plaintiff was in bed when she arrived for the appointment and she found the house in a state of disarray and the sink full of dirty dishes. It was her opinion, as expressed in her report, that since Mrs Vernon had left, the Plaintiff's "quality of life is extremely impoverished and he lacked both financial and emotional resources to improve his own situation, which adds to his feeling of helplessness". She considered that he needed an "experienced therapist/care manager experienced in the field of mental health to act as a facilitator to assist him to take charge of his life again and so provide him with structure and purpose to his day". She quantified the services of such a person for the first year at £25,220, for the second and third years at £20,000, for the fourth year at £3,862.50, and for the fifth year at £1,830 and thereafter using that sum as a multiplicand, the Judge applied a multiplier of 8. This represents a multiplier of 13 years in total for the future, which suggests the Judge envisaged the Plaintiff needing this therapy for the next 20 years.
There is very little discussion of this in the judgment. The Judge said that the Plaintiff was perfectly capable of physically looking after himself and the garden, what he lacked was the motivation to do so. At p. 301 he said:
"In my judgment Mr. Vernon needs both stimulus and physical help, not to enable him to remain supine for the rest of his life but to assist him in regaining sufficient self-esteem and motivation to live a life on his own.....It will include occupational services for a reasonable period of time."
Mr. O'Brien criticises this award for a number of reasons:
(1)There was no medical evidence to support the need or extent of the occupational therapy.
(2)It ignored the fact that since February 1993 the Plaintiff had attended Park House Day Hospital for sessions of pottery and art therapy, as well as weekly supporting counselling from one of the psychiatric nurses and the attendance at the Plaintiff's home of Mr. Moxham, a National Health Service manager and approved social worker, who was part of the team, consisting of Dr. Lloyd and the psychiatric nurse just referred to. Indeed, these people are not even referred to in the report.
(3)It ignored the fact that psychotherapy had been provided to the Plaintiff by Mr. Mackay until the Plaintiff fell out with him; but presumably it would be available again if Dr. Lloyd thought it necessary.
(4)It was Dr. Lloyd's opinion that he would require supportive counselling, which he was already receiving. No suggestion of any other need was made. It is to be assumed that if the Day Hospital considered that he needed further occupational therapy than he was receiving they would have provided it, or if they could not, have said so.
(5)To take what is effectively a 13 year multiplier is inconsistent with the Judge's own finding that this would be required only for a reasonable time.
In my judgment, there is much force in these criticisms. A proper basis for such a claim was not laid, and I would disallow it.
Future domestic help
The Judge assessed this on the basis that the Plaintiff needed 15 hours a week at £4.10 per hour, giving a multiplicand of £3,198, and took a multiplier of 13. He reduced the multiplier from 17 to 13 on the basis that the Plaintiff might marry or that therapy might encourage him to shop, iron and even learn to turn on the washing machine himself.
Mr. O'Brien submits that this sum is grossly excessive. First, on the basis that the Plaintiff is physically capable of doing these things himself, what he lacks is motivation and this lack of motivation is very variable and intermittent. Secondly, the Judge increased the amount claimed, and considered appropriate by Mrs Waterman, from 6 hours a week to 15 hours a week. The Judge did this because he said there were other forms of help which he was not allowing. If this related to the nanny and the secretarial work, the Judge disallowed them because he said that the Plaintiff did not need them. It is difficult to see, therefore, why this justified an increase of almost three times. Thirdly, Mr. O'Brien submits that a multiplier of 13 is too high and does not reflect properly the matters which the Judge refers to or the possibility of improvement after this case is over. And finally he submits that if, as the Plaintiff asserts, he can cope with his children, it is difficult to see why he cannot cope with himself to a greater extent than is claimed.
Again it seems to me there is considerable force in this submission. I would take the figure of 6 hours a week, making £1,279.20 a year, and apply a multiplier of 8, making £10,233.60.
Gardener/handyman
The Judge awarded £3,952. Although I think this too was on the generous side, in the context of the case as a whole it is not important and I would not interfere with the Judge's assessment.
Under this head, therefore, I would allow the appeal in part. The items will be as follows:
Past care, Mrs Vernon 9,304 (plus interest at the appropriate rate)
| Future care |
Domestic |
10,233.60 |
| |
Gardener |
3,952.00 |
| |
|
£23,489.60 |
This represents a reduction of £88,128.9 on the sum awarded by the Judge.
Interest
The Judge awarded the Plaintiff £198,269 by way of interest; of this sum the bulk, i.e. £173,636 was interest on pre-trail loss of earnings being at half the short term investment rate to reflect the fact that the loss accrued over the whole period.
The statutory requirement is that where the court awards damages in respect of personal injuries "the court shall exercise that power (granted by Law Reform (Miscellaneous Provisions) Act 1934 s. 3 (1) to award interest) so as to include in that sum interest on those damages or on such part of them as the court considers appropriate, unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages": (see ss. (3) (1) A of the 1934 Act added by s. 22 of the Administration of Justice Act 1969).
In Jefford v. Gee [1970] 2 QB 130 at p. 151 Lord Denning MR, giving the judgment of the Court, said that in exceptional cases where one party or the other was guilty of gross delay, the court might depart from the requirement by diminishing the amount of interest. Such delay was a special reason for not granting interest to which the plaintiff was otherwise entitled.
Mr. O'Brien submitted to the Judge that he ought to exercise his discretion to deprive the Plaintiff of some part of the interest because there had been inordinate and inexcusable delay. The Judge rejected this submission. In this Court Mr. O'Brien submits that the Judge wrongly exercised his discretion.
The writ was not issued until 8 August 1985, five days before the expiry of the Limitation period; it was served on 7 July 1986, one month before it expired. The Plaintiff is entitled to take advantage of the time allowed by law; but if he does so, and does not use that time in the preparation of his case, it behoves him to act expeditiously thereafter. He plainly did not do so. The statement of claim was served on 24 July 1987, the defence admitting liability but denying damage on 13 February 1988. Thereafter there took place what the Judge described as an arms race as the parties searched for documentation which ran into thousands of documents to support their respective cases. Nevertheless, I have no doubt that there was inordinate delay on the part of the Plaintiff. This action should not have taken eleven years from the accident to the date when it was set down for trial. There were a number of occasions when the Defendant's solicitors had to issue summonses to force action from the other side and they eventually issued the summons for directions.
The explanation for this delay, at least from the time that Mr. Bretton, the Plaintiff's present solicitor, took over the conduct of this action in February 1990 is given in his affidavit. He said:
"The behaviour remarked upon in....the judgment manifested itself in my contact with the plaintiff and seriously inhibited my preparation of this case. The amount of work was so compounded by his condition that I had to seek authority from the Legal Aid Board to apply additional resources to it. At times and for brief periods the plaintiff could work effectively, but those occasions were exceptions and were not sustained. His concern for minutiae gave rise to a need to examine particular events and hundreds of documents in minute detail and an inability to sustain concentration meant that he could not stick to the points in question. The same ground was covered again and again in spite of all my efforts. The learned Judge's reference to `an uncontrollable urge to depart from the point and travel down endless byways of dialogue' is behaviour which I recognise well. This is exemplified by the 61 meetings (full days!) it took to prepare witness statements from the plaintiff and his wife."
The Judge divided the delay into the period between the service of the writ until the service of the defence, a period of about 18 months. He said that this period was "occupied by what were in effect negotiations involving the initial testing out of the elements of the claim" with a view to arriving at a settlement. As to the period thereafter, he accepted Mr. Blunt's submission that the delay was attributable to the Plaintiff's condition, that on the Judge's finding this had been caused by the Defendant's act, and that the Plaintiff was therefore not guilty of delay in the sense of being at fault; therefore he should not be deprived of any interest.
Recognising that this Court will not interfere with the exercise of the Judge's discretion unless he has erred in principle, failed to take into account some matter he should have, or took into account some mater he should not have, or was otherwise plainly wrong, Mr. O'Brien submits that the Judge was in error in respect of both these periods.
As to the eighteen months from July 1986 to February 1987, Mr. O'Brien submits that there was no evidence before the Court that negotiations for settlement were taking place during this period. In any event, it is well established that negotiations should not interrupt the proper progress of the action unless there is agreement to that effect between the parties. I agree with both these submissions. I would also add that the Defendant was faced with a potentially huge claim in respect of the loss of Paraero, which was not quantified until Cooper & Lybrand's report was served on her solicitors on 25 February 1988. I would deduct one year's interest in respect of this period.
As to the period from early 1988 to the time when the action was set down, Mr. O'Brien makes the following submissions:
1. That the Court must adopt an objective standard in respect of delay and not a subjective one. In other words, the question has to be determined on the basis of how a reasonable Plaintiff and reasonable solicitors would behave, not how the Plaintiff in fact behaved. It is therefore irrelevant that it was the Defendant's tort that was the cause of his conduct. If he is capable of managing his affairs he must be held responsible; if he is not, a guardian ad litem should be appointed. For this proposition he relied on the decision of this Court in Martin v. Turner [1970] 1 WLR 82.
2. That there are three discernable reasons why the Court will deprive the Plaintiff of the full amount of interest where he has been guilty of unjustifiable delay.
(a)That he has not been kept out of his money by the defendant, but through his own fault. In Birkett v. Hayes [1982] 1 WLR 816 at p. 825, Watkins L.J. said:
"The Plaintiff will have been kept out of the sum awarded to him by his own fault. The fact that the defendants have had the use of the money during this time is no good reason for excusing that fault and allowing interest to run during that time".
(b)It is intended to act as a discipline so as to discourage delay. Since the prosecution of the action is primarily in the hands of the plaintiff, it is essential that he does so with reasonable diligence. The defendant can only apply to strike out the action for want of prosecution if he can show that there is a risk that there can no longer be a fair trial or that he has suffered prejudice. In practice, this is often a difficult hurdle to surmount.
(c)To prevent injustice to the defendant because delay in personal injury cases, especially where there are substantial claims for past or future loss of earnings and cost of care, may well result in the defendant paying more, even when allowance is made for the fact that by paying later he had the use of the money meanwhile and he will be paying in money that has decreased in value because of inflation. He relies upon the decision of Hayes v. Bowman [1989] 1 WLR 456. That was a striking out case, but similar principles relating to inordinate and inexcusable delay are applicable when the court is considering depriving the plaintiff of interest on this ground. Mr. O'Brien points to the fact that the plaintiff argued inter alia in that case that there was no financial prejudice to the defendant because the trial judge would exercise his discretion to deprive the plaintiff of two year's interest: see per Purchas L.J. at 462G and Slade L.J. at p. 468F. Mr. O'Brien put figures before this Court, though not to the Judge, designed to illustrate the prejudice to the Defendant in this case unless some adjustment to the interest is made.
3. That the Judge appears to have been wrongly influenced by the fact that the Defendant did not apply to strike out the action for want of prosecution, when in December 1990 the Plaintiff had to give notice of intention to proceed. It is true that the Judge mentioned the fact that the Defendant did not so apply; but I do not think this formed any part of his reasoning not to deduct interest. If it had been, I agree it would have been an error, because, as I have already pointed out, in general a defendant cannot make a successful application to strike out unless he can show prejudice.
I turn then to consider Mr. O'Brien's submission based on Martin v. Turner. That was a striking out case. There had been inordinate delay. The plaintiff sought to argue that it was not inexcusable because the delay was attributable to his mental condition and this was said to be due to the effects of the accident, at least in part. That case was supported by the opinion of a psychiatrist, but the court obviously considered his evidence did not go far enough to establish the premise.
At p. 85H Davies L.J. said:
"We do not know to what extent this mental condition was caused by the accident. We do know that the plaintiff is apparently able to manage his own affairs; nobody has been appointed to represent him. It seems to me that one has to look at this quite objectively and asking - would a man who apparently is able to walk, talk and go about the place be reasonable in blocking the pursuit of his own claim for damages? In my opinion, it is quite impossible to say that he was justified, in the light of Dr. Blair's report, in the conduct which he has exhibited during all these years."
I do not understand the use of the word "objective" in that passage to mean that the court should disregard the question of fault on the part of a particular plaintiff.
Winn L.J. said at p. 88D:
"Every person in this country who is of full age and suffering from no disability is entitled to come to the court and, in accordance with the rules of the court, conduct litigation in an attempt to recover damages, or assert another claim, in respect of what he has suffered."
The learned Lord Justice then referred to the psychiatrist's reference to the MacNaughten rules when giving his opinion, and pointed out that the doctor did not consider the plaintiff to be insane. He continued:
"If he had taken that view , proceedings could have been brought under RSC Order 30, which would have enabled representation to be afforded and the claim to have been competently presented on behalf of the plaintiff. If he was not under such a disability as can be dealt with under the provisions of that rule, he must be held responsible for his process of litigation or for his failing to follow any due process of litigation."
Mr. O'Brien strongly relies upon that passage. He submits that there is no halfway house. Either the Plaintiff can manage his own affairs, in which case he must act as a reasonable litigant would do; or else a guardian ad litem must be appointed who can conduct the litigation properly.
I agree with the Judge's analysis of that case. In my view both Davies and Karminski LJJ, if not also Winn L.J., had they been satisfied that the plaintiff's conduct was due to the tort of the defendant, would have regarded this as an excuse for the inordinate delay. On Sedley J.'s finding in this case, the Plaintiff's obsessive and obstructive conduct was due to the Defendant's tort.
I do not think that I would necessarily have exercised my discretion so indulgently to the Plaintiff, because it seems to me that there may well come a time when the solicitor has to take a firm line with an obstructive client. He can warn him that he will cease to act unless he is allowed to conduct the litigation without unreasonable interference. If the plaintiff is indeed so incapable of taking this advice or understanding it, the time may well have been reached when a guardian should be appointed. Moreover, I bear in mind that at least till September 1992, Mrs Vernon was available to give help to the Plaintiff. But I do not think that these matters were canvassed at the trial and I do not think we would be justified in interfering with the Judge's discretion on this basis.
Turning to the second submission, I agree with the propositions advanced by Mr. O'Brien. But 2 (a) and (b) both depend on the plaintiff or his solicitor being at fault. Since the Judge found he was not at fault because his conduct was due to the tort, these propositions do not assist Mr. O'Brien in this case.
As to 2 (c), I also agree that if the Defendant can demonstrate to the Judge that prejudice has been suffered on these lines, then it can and should be remedied by making some adjustment to the interest. But the difficulty with this type of submission is that both sides of the equation have to be taken into account; the prejudice to the Defendant in paying a higher sum at a later stage has to be balanced against the benefit of use of the money meanwhile and the effect of inflation. In this Court elaborate schedules have been produced by both sides which reach diametrically opposite conclusions. According to Mr. O'Brien, the Defendant is much worse off; according to Mr. Blunt, he was saved a great deal of money by the delay.
There are two reasons why in my opinion it is unnecessary to decide who is right. First, because no such submission was made to the Judge, and I decline to hold that he was wrong when he was not asked to consider the matter. Secondly, because in the light of the judgment of this Court on loss of earnings and care, the figures are now substantially different. I would also add a caution. In striking out cases the courts have found arguments based on this form of financial prejudice give rise to some intractable problems on the lines I have indicated. In dealing with questions of interest, in the great majority of cases the judge should take a broad view and seek to do justice between the parties. It would, I think, be very undesirable if much time and further expense was taken up at the end of a trial on issues such as this unless the figures clearly show injustice to the defendant. Accordingly, I would allow the appeal under this head to the extent of deducting one year's interest.
Costs
The Judge awarded the Plaintiff the whole costs of the action. In so doing he rejected Mr. O'Brien's submission that he should make some special order having regard to the fact that the Defendant had succeeded in defending the claim based on the collapse of Paraero.
The law relating to the award of costs has recently been restated in The Elgindata (No. 2) [1992] 1 WLR 1207. At p. 1214 Nourse L.J. said:
"The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or a part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs."
The Defendant faced a claim in respect of the collapse of Paraero of about £3m. Had it succeeded it would have carried interest at the full rate from the date of the writ, or fairly shortly thereafter. This alone would have been a vast sum. Furthermore, if the Plaintiff's case had succeeded on this issue, the damages for loss of earnings would have been calculated on the basis of Mr. Seddon's primary figures, rather than his alternative scenario accepted by the Judge. This would have added approximately £700,000 to the loss of earnings claim, as the figures set out earlier in this judgment illustrate. The past lost earnings figure would have attracted interest.
It is quite plain, in my judgment, that the Paraero issue, on which the Plaintiff failed, caused a very significant increase in the length and costs of the proceedings. These included the whole of Cooper & Lybrand's reports, except in so far as they related to salary rates in the executive market, evidence given by Mr. Seddon; attendance and evidence of Mr. French; Robson Rhodes' reports and evidence of Mr. Gregory, the evidence of several witnesses in whole or in part, and a mass of documentation.
The Judge, however, refused to make any order on the ground that the Paraero issue was not as he called it discrete or freestanding; it was, he said, intimately bound up with the totality of the case because the Defendant's experts focused on the decline and fall of Paraero as the principal reason for the Plaintiff's present condition, a contention in which the Defendant failed. I should point out in Nourse L.J.'s formulation of point (iii), which is relevant here, there is no reference to discrete or free standing issues, nor is this a necessary requirement. Moreover, the Defendant's case was that it was the fact that Paraero had failed, rather than the reasons for its failure that was of primary importance, coupled with the Plaintiff's inability to get employment thereafter. The fact that the Plaintiff was having business worries from Paraero is manifest from Dr. Cuthill's and to a lesser extent in the general practitioners' notes. There would probably have been need of some documentation, but nothing like the extent which was obtained from the Receiver, and that provided by the Plaintiff would probably have sufficed. No doubt some of the witnesses called on behalf of the Plaintiff who spoke of his condition after the accident would have had to be cross-examined to some extent on the troubles besetting the Company. The fact is that Paraero claim represented a major part of the case, both in terms of the money claimed and the time and expense devoted to it. In my judgment, the Judge was plainly wrong not to reflect that in the order for costs that he made.
Mr. Blunt sought to support the Judge's conclusion for a number of reasons which he advanced in a late respondent's notice. In my view, the matters advanced in paragraph 2 (1) of that notice do not add anything of substance to the Judge's reasons. In paragraph 2 (ii) Mr. Blunt submits that the Defendant might have protected herself by a payment into Court, a matter which the Judge did not have to decide. If the Defendant had made a payment into Court in excess of the damages and costs awarded, she would have received the whole costs of the action after the date of payment in. The fact that she did not do so is quite irrelevant in the circumstances of this case to the question whether some special order should be made under heads (iii) or (iv) of Nourse L.J.'s formulation.
One way of dealing with this matter would be to direct the taxing master to disallow all costs relating to that issue. But I think that might be a very difficult, time consuming and expensive task. The order which in my judgment fairly reflects the justice of this matter is that the costs of the Cooper & Lybrand reports and evidence should be disallowed, except in so far as they related to Mr. Seddon's evidence on salary levels and those relatively short parts of the reports that dealt with that matter. Furthermore, the Plaintiff should only recover 85% of the remainder of the costs of the action.
It follows from what I have said that I do not think this case falls into the fourth category of the Elgindata formulation. It is not a case where the Plaintiff should be ordered to pay the Defendant's costs of this issue.
The appeal will be allowed in part; judgment for the plaintiff for £1,133,962:59 together with interest of £198,269:00 and costs will be varied and judgment will be entered for the Plaintiff for £643,425:56 together with interest to be calculated in accordance with this judgment and costs as set out above.
Lord Justice Evans:
The only issue on liability is whether the plaintiff suffered personal injury by reason of the accident in which his own car, driven by his children's nanny, crashed into the river Tawe where it overturned and his two young children, together with a young friend of theirs, were drowned. He was not physically involved and there is no suggestion of physical injury to him. He claims that he was caused mental or psychiatric injury by reason of the fact that he was an eye-witness, not of the crash itself, but of the attempts which were made to salvage the car and to rescue the children. He saw these in company with his wife from the river bank.
That was in August 1982. He was at that time the managing director of a small private company which he had bought with the assistance of the British Rail Pension Fund in the previous year. He continued in that post until January 1986 when the company's business was placed in the hands of a Receiver and much of its capital was lost. He did not succeed in finding fresh employment by the autumn of 1987 when he was advised by doctors that he should give up the search on account of his deteriorated mental condition. Since then he has devoted himself to preparing for this litigation which finally came to trial in January 1994. Meanwhile, his wife left him in September 1992 and his mental condition deteriorated still further. His performance in the witness-box, spread over 27 days of the hearing, left the judge in no doubt that he was suffering from severe mental illness at that time.
Subsequently, the judge heard the evidence of six medical witnesses in the course of 24 hearing days. The total of the hearing was 68 days. In January 1995 the judge gave a 262-page judgment which, if I may respectfully say so, is a tour de force, describing the whole of the plaintiff's life history in the light of the evidence which he had heard.
It is a matter of great concern that the hearing lasted so long and that the costs were so prodigiously high. The judge said this :-
"The reason is that practically every element, and every detail of every element, of the plaintiff's claim is contested on behalf of the defendant."
There is an undertone of criticism of the defendants or their representatives in that remark. This makes it necessary to consider the procedural history in a little more detail. There were, in my judgment, two principal reasons why the hearing was always likely to be prolonged. First, the plaintiff claimed more than £4 million as damages, based on his allegation supported by highly reputable accountants and business consultants that the mental injury which he sustained by reason of witnessing the accident led to the failure of the company's business in 1986. The size of the claim made it inevitable that the defendants would spare little or no effort and expense in their resistance to it. So far as the accountancy and business evidence was concerned, this was kept within manageable bounds, but the second reason for the length and cost of the hearing was the medical evidence which, in my judgment, got completely out of hand, with the result that, in the judge's words, "every aspect of the plaintiff's life since leaving school" was examined in the course of the evidence of expert and factual witnesses, mostly by reference to the unusually large number of documents which the plaintiff himself was able to produce, or which the parties were able to obtain from his former employers, the Ministry of Defence (because he spent nine years from 1960 until 1969 in the army), and other sources.
The issues
Given the potential scope of this inquiry, it is lamentable in my view that nothing whatsoever was done by either party to define the issues which were raised by the medical evidence or to seek to limit the area of inquiry in some other way. The pleadings conspicuously failed to perform this function. The plaintiff gave particulars of injury as follows :-
"[The Plaintiff] suffered a very severe degree of nervous shock or psychological trauma and subsequently developed a severe post traumatic type of neurosis complicated by a severe grief reaction".
The Defence, served in February 1988, admitted that the accident was caused by the negligence of the defendant, who was the nanny who was driving the plaintiff's car, and in its second paragraph said merely :-
"No admissions are made in respect of the pain, inconvenience, loss and damage which the Plaintiff claims to have suffered."
At that date the defendants had not consulted either of the two doctors whom they called as expert witnesses at the trial, so presumably they could not have reflected in that pleading any of the issues which subsequently were raised. They instructed their first expert, Dr Gaind, shortly afterwards, and there followed numerous requests for disclosure of further documents which eventually the plaintiff was able to comply with to the extent indicated above. Dr Gaind saw the plaintiff in April 1988. His report dated 7 December 1990 was received by the plaintiff's solicitors on 21 May 1991. The contents of this report gave some notice that the area of inquiry would be extensive and that issues would be raised at the trial which did not begin to be identified in the Defence.
The case was set down for hearing in June 1993 on the defendants' application, and at about that time they obtained leave to serve a further report from a second medical expert witness, Dr Marion Swan. She saw the plaintiff for one day on 7 September 1993 and after thorough consideration of a large number of documents supplied to her by the defendants' solicitors she produced a 38-page report on 5 October 1993. Her conclusions were that the plaintiff and his wife had suffered no more than the normal grief reaction of any parent following their bereavement and the admittedly traumatic experience of seeing their daughter's deaths, and that :-
"I believe that Mr Vernon's business failed for reasons which were not associated with the accident but arose from factors in his medical, educational, family and work background and that such failure was more than probable given the background history of the matter and Mr Vernon's track record at the time when he became a company director."
If any thought had been given at this time, which apparently it was not, to identifying the medical issues which this evidence raised, it would have amounted to a denial that the plaintiff suffered from mental illness after the accident, or that any such illness was caused by the accident, and that the failure of his business was caused, not by such injury as he alleged, but by the complex of other factors to which reference was made, including the plaintiff's "track record" meaning the history of his business career before 1981. This allegation of an independent cause of the whole or a major part of the plaintiff's alleged loss should certainly have been pleaded, but it was not. This is more than a technical pleading point, if only because, had the pleadings been amended at that time, it would have become clearer than it was at the trial that the defendants' case, and Dr Swan's evidence in particular, went far beyond what she said in this report. Moreover, the question might well have been raised, but it was not, whether Dr Swan had the necessary expertise to give any opinion evidence as to the reasons why the business failed or the plaintiff's competence as a business man. She does not claim to have any experience of psychiatry or psychology in a business or industrial setting.
At or before the beginning of the trial, the defendants admitted that the relationship between the plaintiff and his daughters was close enough, and that he was sufficiently proximate in time and place to the accident in which they died, to give rise to a duty of care owed by the defendant to him in accordance with the principles established by the House of Lords' decision in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310. They also accepted that the experience of witnessing the deaths of his own two young children was an event which might cause psychiatric damage to a person of normal fortitude. So the remaining issue on liability was whether the plaintiff sustained a mental injury which was caused by that experience. Because there was no admission that the plaintiff has suffered from mental illness (until the defendants conceded at the end of the trial that he was suffering from depression, a form of recognisable psychiatric illness, at the time of the trial, though not earlier), this issue sub-divided into two : had the plaintiff suffered from mental illness after witnessing the accident and losing his daughters in 1982, and if so, was that illness caused or contributed to by that experience?
The case for the defendants, as it appeared from their medical experts' reports, was (1) the plaintiff was not and never had been mentally ill; (2) if he was, the illness occurred only after and as a result of the failure of his business in 1986 and his separation from his wife and their children, born since 1982, in 1992; (3) the failure of the business was caused by its initial lack of viability and/or the plaintiff's own shortcomings, both personal and as a businessman; (4) between 1982 and 1986 the plaintiff suffered from no more than the usual reactions of grief and bereavement which were to be expected from any person in his position; and (5) if the plaintiff was mentally ill at any time, it was no more than the manifestation as the result of stress of a personality disorder which he has suffered from early childhood and which had appeared occasionally before 1982.
There were in addition issues as to the amount of damages, if the defendants were liable. In particular, the claims for loss sustained by reason of the failure of the business and for the plaintiff's failure to obtain fresh employment after 1986, which depended upon his employability and therefore upon his personality and his freedom from mental illness at that time, clearly overlapped the liability issues to such an extent that it was not easy to distinguish between them.
The evidence of the plaintiff and 38 witnesses, together with thousands of documents, including many which were relied upon under the Civil Evidence Act as evidence of the truth of facts, and even of opinions, stated in them, was directed to these complex issues. But the process was wholly undisciplined by pleadings or any other attempt to define in writing the issues which were raised. The plaintiff's representatives did suggest that the accountancy evidence, dealing primarily with the reasons why the business failed, could be reserved for a separate trial, but this was opposed by the defendants on the grounds that those issues were closely linked with the central issue on liability and that a second trial would become necessary in any event if the first was limited in that way. Their objection succeeded and it cannot be said that it was wrong. But the sad fact remains that no other attempt was made to identify the issues which the proceedings were intended to resolve. The most powerful and the most obvious weapon in the forensic armoury against unnecessary time and expense is to define the issues in advance of the trial. It was not used.
The misfortunes do not end there. The extent to which the issues changed in the course of the hearing, and the defendants' case in particular, is strikingly demonstrated by a passage from the evidence of their leading expert witness, Dr Swan, when she was being examined in chief by Mr O'Brien Q.C. on day 56. Her evidence was that by the end of 1986 the plaintiff "must have become increasingly more distressed by his failure [to obtain fresh employment]". She was asked about a condition described as "learned helplessness" which had been observed in experiments on rats. The theory, she said, "has been extrapolated to people who suffered so many blows in life that they would give up . . . . . . what I see as having happened to Mr Vernon is that he repeatedly failed on the career front. I think probably we have got to go back right to childhood and count all the blows that were whirled on him, his failure to get as many O levels as he had hoped", and so through his army and business careers until, "when the receivership happens he picks himself up again and does not really lower his sights. At the point when it comes to an end he falls apart" page 50). What is remarkable, as Mr Blunt Q.C. observed in his submission to us, is that the catalogue of disasters as listed by her does not contain any mention of the 1982 accident or of the loss of his children. And on any view the witness had moved a considerable way from denying that the plaintiff suffered from any mental disorder, even after 1986.
Equally striking is the emergence of what became the defendant's principal submission before us, attacking the judge's conclusion that the plaintiff did sustain a mental injury by reason of witnessing the accident in 1982. The submission is that a crucial distinction exists between post traumatic stress disorder (PTSD) and the feelings of grief and bereavement which follow naturally from the death of a loved one and which can themselves develop into a form of mental illness (pathological grief disorder, or PGD). This distinction has emerged in the medical literature since the early 1980's, and a classification is found in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association in Washington DC. The revised third edition, known as DSM - 111 - R, is dated 1987. Mr O'Brien's submission is that the judge did not find that the plaintiff suffered from PTSD as so defined and that the evidence does not justify such a finding. Therefore, he submits, the plaintiff fails to establish the only kind of mental injury for which damages are recoverable at law, and any illness which may have manifested itself before 1986 was a consequence of the plaintiff's natural feelings of grief and bereavement. (The suggestion of a pre-existing personality disorder to which Dr Swan committed herself in her evidence was rejected by the Judge, and the defendants do not appeal against this finding.)
This was a remarkable development of the defendants' case. There was no reference to PTSD or to PGD in Dr Swan's pre-trial Report, but this may be explained by the fact that in her view as expressed in that report the plaintiff suffered no more than "the pain and suffering as a consequence of [witnessing the accident] and the tragedy of bereavement such as it would affect any parents in such circumstances" (Conclusions, page 38). Dr Gaind saw the plaintiff in April 1988 and reported in December 1990. In his opinion, "the death of his children did set him back a little but did not produce severe depression. Mr Vernon had grieved properly and recovered from bereavement within a short time". His only reference to "post traumatic neurosis" was in relation to a minor road accident in which the plaintiff was or may have been concussed in December 1985 but which it is not now suggested has any bearing on the issues with which this appeal is concerned.
Dr Gaind's second Report dated 16 August 1993 followed a further examination of the plaintiff on 21 July 1993. He diagnosed two distinct depressive disorders, the second being a depressive neurosis which had "remained with him for many years" (page 16). He considered that the plaintiff had "grieved properly and recovered from his bereavement within a short time" (page 1), referring to "Uncomplicated Bereavement", part of DSM - III. He concluded that the plaintiff suffered from paranoid psychosis "which in spite of regular use of neuroleptics has been poorly controlled" (page 18) and he added in the final sentence, "Finally, I do not believe he does, or ever did, suffer from PTSD (post traumatic stress disorder)" and he referred to the diagnostic criteria for PTSD as described in DSM 111 R. This seems to have been the first introduction of the DSM classification into the present case. The consequent need for differential diagnosis i.e. distinguishing between the illness described as PTSD, meaning, in legal terms, the consequences of involvement as a primary or a secondary victim of the shocking or traumatic event, and on the other hand feelings of grief and bereavement (uncomplicated bereavement) which may lead to the mental illness described as PGD, is now central to Mr O'Brien's submissions, for the reasons indicated above.
It is not clear, even now, how the defendants' case on the medical issues should be formulated in the light of the evidence given at the trial. It seems to come to this. They accept that the plaintiff was suffering from mental illness at the time of the trial. They say that this was precipitated, first, by the failure of the company's business in January 1986 and his failure to obtain fresh employment thereafter, and by the fact that his wife with their children born since 1982 left him in September 1992. The underlying cause can be found, they say, in his medical and career history back to his schooldays. He has suffered throughout from a personality disorder which at times of stress, both before and after 1982, had resulted in degrees of mental illness and sometimes in physiological i.e. physical symptoms also. But they deny that the plaintiff suffered from "nervous shock" by reason of his experience in August 1982, and they say that, if he did suffer from mental illness during the period between then and the failure of the business in January 1986, then that was no more than the extreme reaction to grief and bereavement which can be classified as "pathological grief disorder" and is described in the article by Dr Murray Parkes extensively quoted by the judge (Bereavement (1985) British Jo. of Psychiatry Vol. 146 page 11).
They deny that the plaintiff suffers or ever has suffered from the psychiatric illness classified as "post traumatic stress disorder"; in other words, that he sustained any mental injury from the experience of witnessing the accident in which his daughters were killed.
In these circumstances, it is hardly surprising that the judgment, masterly though it is, reads more as a biography of the plaintiff, mostly in chronological order, as seen by the judge after hearing the conflicting views of the medical expert witnesses.
This lengthy introduction to the issues raised by the appeal has been necessary because in my judgment the correct, if more mundane, approach is to identify the issues and then ask in relation to each issue what the judge's findings were and whether or not they were supported by the evidence that he heard. Moreover, I consider that in the circumstances and for reasons which I shall give below regard should be had in the first instance to the factual evidence of lay witnesses rather than to the differing interpretations advanced by the expert witnesses of the facts so established.
The principal issues, in my judgment, are simply these :-
(1)Did the plaintiff suffer from mental illness
(a) after August 1982 and before January 1986;
(b) after January 1986?
(2)If so, was the mental illness caused or contributed to by his witnessing of the accident in August 1982?
(3)If so, what is the correct measure of damages for the injury so caused?
(1)(a)Did the plaintiff suffer from mental illness after 1982 and before January 1986?
First, it is necessary to say something about terminology. The phrase traditionally used in the legal authorities is "nervous shock" or "mental shock". This was defined in Hinz v. Berry [1970] 1 Q.B. 40 as a "recognisable psychiatric illness" (per Lord Denning M.R. at 42H and Lord Pearson at 44F). It was suggested recently that the appropriate term might be "mental trauma" (per Hoffmann L.J. in Page v. Smith [1994] 2 All E.R. 522) but "trauma" is used to refer both to the injury and to its cause ("the traumatic event"). The medical literature which we have seen suggests that "disorder" or "mental disorder" has become something of a term of art (PGSD and PGD are examples of its use). I do not see what advantage is gained by departing from the basic concept of "mental illness" or "mental injury". The law is prepared to award damages for personal injury which extends beyond physical or organic injury to include psychiatric injury, meaning (literally) injury to the mind. Disorder of the mind is no more than a metaphor, although a dramatic and useful one, as was Lord Ackner's graphic definition of "shock" in Alcock's case :-
"Shock", in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind" ([1992] 1 A.C. at 401F).
I shall therefore use the phrases "mental illness" and "mental injury" in the hope that they are sufficiently precise to convey the same meaning as "recognisable psychiatric disorder" and the lawyers' favourite, "nervous shock".
A second preliminary observation is this. By definition, the mental illness in question is not necessarily accompanied by physical or organic injury, or even by any deterioration in physical health. To that extent its symptoms, therefore, are behavioural: conduct or speech which is regarded as "inappropriate", meaning, as I understand it, not to be expected from a "normal" person. This factor has some implications for the admissible scope of expert psychiatric evidence, because it may mean that ultimately the psychiatrist is expressing his or her own view as to the extent to which the observed behaviour departs from what is normal. (This does not mean and I do not suggest that there is no scope for such evidence, for there are many other respects in which it may be necessary to enable the judge to reach a fully informed conclusion; for example, to state from the witness' own experience how long the "uncomplicated" reaction to grief and bereavement may last in a "normal" person.) It is for this reason in my judgment that the starting point for this particular inquiry is not the opinions of expert witnesses but the factual evidence of what the plaintiff said and did - how he behaved - during the periods in question.
The first section of the judgment (pages 6 - 23) deals with "The Plaintiff Now" i.e. at the time of the trial, but it includes the judge's findings based on evidence from witnesses who knew and had dealings with the plaintiff between 1982 and 1986, as well as before and after those dates. They included personal friends and business colleagues, as well as the plaintiff's wife. Mrs Penley is his wife's sister-in-law. She knew him from 1976. For reasons which need not be explained, there is no love lost between them. Her evidence included :-
"Since the accident, and increasingly so since the failure of the company [at the end of 1985], Peter has become at times silent, withdrawn and on occasions almost monosyllabic. He seems to lack concentration and personal confidence. On other occasions he is very voluble.
Although before the accident he was sensitive, Peter has now become ultra-sensitive and it is now necessary deliberately to avoid situations and issues which would upset him."
and later, in cross-examination :-
"... I think that his reaction to the death of the children was very abnormal and there was certainly, to me, a change in character from the moment those children died. He was not the same man."
The judge described her as "an intelligent woman."
Another friend of the Vernons, together with her husband, was Karin Mander. They did not see them much between 1982 and 1986, but the judge found this :-
"Mrs Mander's feeling was that there was a change after 1982, although both Vernons were striving to keep working and maintain an appearance of normality, and a further deterioration from 1986 when the company had ceased trading." p.71
He continued :-
"I accept Mrs Mander's description of her eventual impression of what had happened to Mr Vernon - that he had `gone round the bend' - but I believe that it relates to the time after and not before the collapse of his business. I also accept, however, that there was a perceptible change in his behaviour in the weeks and months following the accident, combined with (and to an extent disguised by) Mr Vernon's absorption in his work" p.71
Another close friend, Sarah Eyre, saw the Vernons regularly, with her husband, between 1982 and 1986. The judge said :-
"Mrs Eyre recounts that he was initially prone to tears but, as time went by, after perhaps the first six months he became increasingly selfish and self indulgent. Her clear impression was that his powers of concentration had become impaired and inhibiting his ability to cope with business difficulties". p.72
A business colleague, Christopher Tubbs, said this in his evidence :-
". . . . . it is my, inexpert, belief that the balance of Peter's personality has changed. What were creative and positive traits before the accident have become obsessive and channelled into pursuing his claim." p.73
Later in his judgment, dealing with the business collapse the judge made these findings :-
"Two men who worked closely with Mr Vernon in setting up the business and continued to work with him after the accident were Mr Clay, the surveyor, and Mr Tubbs, an accountant and businessman. Both were also personal friends of Mr Vernon, but each impressed me as a balanced and careful witness. Both considered Mr Vernon a capable, energetic and thorough businessman and planner in the acquisition and setting up of the business, and neither was in my view shown by cross-examination to have been mistaken in this respect. After the accident both found Mr Vernon a different person." p.218
and later :-
"Although Mr Tubbs carried his account forward into the obsessive pursuit of this action, he resisted the suggestion that Mr Vernon's aberrant behaviour arose only when the business collapsed. Although Mr Tubbs' view of the prosperity of the business was over-sanguine by contrast with what the court now knows, I accept his evidence that it was following the accident that in spite of Mr Vernon's efforts it became apparent that his concentration and ability to solve problems were reduced". p.219
Further witnesses, some called by the defendants, were also referred to. Then the judge considered Mrs Vernon's account of her husband in the aftermath of the accident. It must be remembered that before and after the accident she played an important part in the running of the company's business. She was "the administrative linchpin ... from first to last". He recognised that because of the manifest stake she has in the outcome of the litigation her evidence demands a measure of caution (page 228). He continued :-
"The evidence which I have now set out, however, satisfied me independently of Mrs Vernon's testimony that a perceptible change occurred in Mr Vernon's disposition and capacity in the months and - more so -years following the accident and prior to the failure of the company. Mrs Vernon's statement, as is to be expected, sets out at considerable length the changes she perceived and experienced in Mr Vernon and which, in the light of the other evidence, I accept as essentially reliable. I will come when I turn to the question of diagnosis to some of the factual data, such as the accounts of nightmares and the revisiting of the accident site. For the present, the striking thing about her account is the account is the combination of manifestations of grief with bizarre conduct suggesting, from the start, that the event had also triggered previously latent forms of behaviour; and to these I will come in due course." p.228
He then concluded :-
"From her, as from the generality of other witnesses, I have a reasonably consistent picture. Mr Vernon, in my view, continued to try and to be able to perform, ostensibly well in his business dealings, albeit with much effort. But these were temporary performances and were undermined by the seepage into his working relationships of forms of erratic and inappropriate behaviour which were simultaneously coming to characterise and dominate his domestic and social life - behavioural characteristics dictated in large part by Mr Vernon's immediate environment and the demands made upon him by it, as well as by his own self-image. This change, in my judgment was a real and significant change." (p.231)
His overall finding on this issue, after considering the medical evidence, is at page 290 :-
"Of all these things the witnessing of the accident was not the sole cause, but it was the initiating cause of an uneven but perceptible sequence of mental deterioration and personality collapse in an already vulnerable individual."
Insofar as the finding rests upon the factual evidence, I do not consider that the defendant can even begin to suggest that it was not fully supported by evidence which the judge accepted and upon which he relied. There clearly was a change for the worse in the plaintiff's behaviour, conduct and speech, during the period after the accident and before 1986. The question is whether these were the symptoms of mental illness and, which is relevant rather to the question of causation, what the illness was.
The only medical witness who treated the plaintiff during this period was the consultant psychiatrist, Dr J.M. Cuthill, who practises in South Wales. The plaintiff was referred to him not by his general practitioner but by the solicitors who were handling his and his wife's claims arising out of the accident, in January 1983. Dr Cuthill saw him in March and immediately formed the view that he was in need of treatment which he himself undertook. Dr Cuthill's status as an expert witness was criticised by the judge, as were most if not all of the other experts who gave evidence at the trial, but the facts were as follows. Dr Cuthill continued to see and treat the plaintiff until 1987, and it was his diagnosis which formed the basis for the "Particulars of Injury" already quoted from the Statement of Claim, served in July of that year ("a very severe degree of nervous shock or psychological trauma and subsequently developed a severe post traumatic type of neurosis complicated by a severe grief reaction"). He wrote to the plaintiff's G.P. on 11 March 1983 :-
"At the time of [the first] examination I felt it was imperative that he have some more active treatment, although he himself has been very reluctant to ask for it .... he continues to be exceptionally tense and has great difficulty in sleeping."
After further examinations, Dr Cuthill wrote on 2 December 1983 :-
".... I felt that he was more generally depressed ... and it would seem that he has for some years had spells of depression and has even had anti-depressant therapy."
Pausing at this stage, before considering the opinion evidence of other expert witnesses, it seems to me that there is a clear basis in this historic evidence of what Dr Cuthill's diagnosis was for the judge's finding that not only was the plaintiff a changed man after 1982 but that his behaviour was symptomatic of mental illness during and after 1983.
So the question becomes, was the opinion evidence of the defendants' expert witnesses, Dr Gaind and Dr Swan, such that the judge's conclusion is demonstrably wrong? Effectively, they challenged the correctness of Dr Cuthill's diagnosis ten years after the event. Their primary evidence was that the plaintiff suffered no more pain and suffering then was inevitable, given the circumstances in which he suffered the loss of his children as they did (parts of their Reports have been quoted above). Insofar as they were saying that the plaintiff did not suffer frcm any form of mental illness before 1986, their evidence clearly was rejected by the judge, and it is not necessary in my view to say more on this issue than that in my judgement he clearly was entitled, indeed he was correct to do so. The main thrust of Mr O'Brien's submissions to us has been that the symptoms, whether of illness or not, were those of grief and bereavement rather than of post-traumatic stress. That issue lies more in the realm of causation, to which I shall come below.
(b)Did the plaintiff suffer from mental illness after 1986 and before the date of trial?
Although this is not formally admitted by the defendants, I do not believe that the contrary is seriously arguable. Dr Swan's evidence as to what were, in her view, the consequences first of the failure of the business in January 1986 and secondly of the plaintiff's wife and children leaving him in 1992, an extract from which I have quoted above, effectively admits that his mental condition deteriorated to the point of illness during this period. In her first Report she said "It was at this point [1986] that he experienced a major mental breakdown and it would appear that he has never fully recovered from this ...." (page 37). There must have been some reason why this was not formally admitted, but I do not understand what it was.
(2) Causation
(a) Introduction
This is the issue which lies at the heart of the case. I would define it thus: does the evidence establish that the mental illness from which the plaintiff suffered between 1982 and 1986, and after 1986, was caused or contributed to by shock which he sustained by reason of seeing the accident and its aftermath in which his two daughters were drowned?
The starting point of this inquiry, in my judgment, is the defendants' formal concession that that experience was one which might cause psychiatric injury to a person of reasonable, which I take as meaning normal, fortitude. It is also, effectively, common ground that the plaintiff in 1982 when he underwent the experience was, in the judge's words, a vulnerable personality; not to the extent alleged by the defendants of suffering from a paranoid personality disorder, but because there were traits in his personality which made him particularly vulnerable to the effects of stress, both in his personal and his business life, as he had demonstrated often before.
It is also common ground that he suffered as distressing an experience as can be imagined. In Dr Swan's words :-
"No one can consider that the accident involving Mr Vernon's children and their friend was anything other than tragic, eliminating as it did at one blow both of his offspring in the most gruesome circumstances imaginable" (Report page 36)
"The most distressing cases I have dealt with have probably been those where parents have witnessed the deaths of their children" (Second Addendum Report para.2).
These admitted facts, together with the finding which I would uphold that the plaintiff did suffer from mental illness after, but not before, August 1982, are sufficient in my judgment to establish at least a prima facie case that the illness was caused, or at least contributed to, by the traumatic experience. Put another way, it would seem remarkable that a vulnerable personality should have emerged unscathed from such an horrendous experience of that sort. This corollary of Dr Swan's evidence was not, it seems, pointed out directly to her, but it appears to me that it was a clear inference from the evidence which she gave.
But the burden of proving that there was such a connection between the experience and the illness remains with the plaintiff, and the defendants challenge it by ascribing the plaintiff's symptoms, not to illness resulting from the experience, but to his feelings of grief and bereavement, whether or not they led to illness (pathological grief disorder) in his case.
It is clear law that the plaintiff is only entitled to recover damages if he proves that his illness was caused or contributed to by the traumatic experience, as distinct from grief and bereavement : Hinz v. Berry [1970] 1 Q.B. 40. It is also established that the distinction between PTSD and PGD can be drawn when the medical evidence makes it appropriate to do so (Calasciona v. Dixon C.A. 30 July 1993) though it should be noted that in that case the judge's finding, which this court upheld, was that the PGD was "an arresting or an intensification in the grief-healing process ..... due to later events", including the activity or inactivity of the police and the subsequent inquest and trial of the defendant (page 5), a feature which is not present in this case, at least before 1986.
So the inquiry becomes whether the plaintiff's symptoms of illness were exclusively referable to grief and bereavement. If the evidence fails to establish that they were not, and that they were at least partly referable to his traumatic experience, then despite the apparent unlikelihood of the plaintiff being unaffected by the experience his claim for compensation must fail.
This is pre-eminently the issue to which the medical expert evidence was or should have been directed, and it becomes necessary at this stage to say something about these witnesses and the judge's findings about them.
(b) The (medical) expert witnesses
In his leading speech in McLoughlin v. O'Brien [1983] AC 410 Lord Bridge of Harwich held that "the consensus of informed judicial opinion is probably the best yardstick available to determine whether, in any given circumstances, the emotional trauma resulting from the death or injury of third parties .... was ... the actual cause, in fact, of the plaintiff's psychiatric or psychosomatic illness" (page 432). He continued :-
"But the word I would emphasise in the foregoing sentence is "informed". Far too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility. Now, I venture to hope, that attitude has quite disappeared. " (pages 432/3).
So the role of the psychiatrist, like all other expert witnesses, is to inform the judge of matters which are relevant and within his area of expertise (and, I would add for completeness, which it cannot be assumed are already within the judge's own knowledge from experience of everyday life). But it cannot be suggested that the psychiatrist as a witness is not subject to the same disciplines as other expert witnesses. Their duties and responsibilities were set out by Creswell J. in The Ikarian Reefer [1993] 2 Ll.R at 81 and approved by this Court, presided over by Stuart-Smith L.J. [1995] 1 Ll.R. at 496 :-
Cresswell, J.
"B. THE DUTIES AND RESPONSIBILITIES OF EXPERT WITNESSES.
The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v. Jordan, [1981] 1 WLR 246 at p.256, per Lord Wilberforce).
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v. Commercial Union Assurance Co. Plc., [1987] 1 Lloyd's Rep. 379 at p.386 per Mr Justice Garland and Re J [1990] F.C.R. 193 per Mr Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup.).
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup.). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the Report (Derby & Co. Ltd. and Others v. Weldon and Others, The Times, Nov. 9, 1990 per Lord Justice Staughton).
6. If, after exchange of Reports, an expert witness changes his view on a material matter having read the other side's expert's Report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and appropriate to the Court."
Stuart-Smith L.J.
".... the Judge gave an admirable resumé of the duties and responsibilities of expert witnesses. We have no hesitation in endorsing it. We would, however, add one word of caution in relation to par. 4:
That an expert should make it clear when a particular question or issue falls outside his expertise."
Sadly, in the present case the judge did not receive the assistance from the expert witnesses which he was entitled to expect. Before I quote from the relevant parts of his judgment, I should identify the expert witnesses who were called. They were, for the plaintiff, first, Dr Cuthill to whom reference has already been made; he saw the plaintiff for what is called a "medico-legal opinion" i.e. for the purposes of giving evidence in subsequent proceedings, and proceeded in fact to treat him from March 1983 until December 1987. Second, Dr Dougal Mackay, a chartered clinical psychologist who practises in Weston-Super-Mare and who first saw the plaintiff in September 1986 and continued doing so until October 1993, the total period covered by his two Reports. Third, Dr Gilbert Lloyd, a consultant psychiatrist practising in Gloucester who first saw the plaintiff in October 1991.
For the defendants, the two medical expert witnesses were Dr Gaind, a consultant neuropsychiatrist, and Dr Swan, a forensic psychiatry consultant in independent practice. Dr Gaind saw the plaintiff twice, in 1988 and 1993, and Dr Swan once, in 1993, for the purpose of preparing their reports. Each therefore was called as an independent expert whose first-hand knowledge of the plaintiff was limited to those examinations.
The reason why Dr Cuthill ceased treating the plaintiff was apparently one of geography. After the business ceased to occupy him in South Wales in early 1986 the plaintiff was mostly at home in Gloucestershire. His G.P. referred him to a consultant psychiatrist in Bristol, Dr Barker, in April 1986, who took over his treatment from Dr Cuthill in South Wales. Dr Barker was not called as a witness, though apparently he was not shown not to be available if either party had wished to do so. His manuscript notes and some correspondence were produced in evidence and the judge ruled that the documents were admissible as evidence of their contents, not limited to factual matters. But he declined to treat Dr Barker as an absent expert witness, and in my judgment he was entirely correct to do so.
With regard to the expert witnesses who were called, the judge said this :-
"I believe that there is force in the contention made on the defendant's behalf that the expert witnesses who have treated the plaintiff, Dr Cuthill and Dr Lloyd, both psychiatrists, and the clinical psychologist Mr Mackay, have all of them assumed the very thing which the plaintiff in this action is required to prove namely that he is suffering from PTSD. . . . . I am not prepared to accept this as a valid critique of the professionalism of any of these witnesses, but it does present me with the problem that each has been working from an established hypothesis rather than setting out first to test the hypothesis against others. However, the two psychiatrists called for the defendant, Dr Swan and Dr Gaind, can be seen for reasons which I have already given to have become comparably `parti pris', again not through lack of professionalism but through the osmotic process which is an almost inevitable incident of litigation of this intensity." (p.220-1)
(He could have added, in my view, that the witnesses were invited or allowed to roam over large areas which were outside their medical expertise e.g. the plaintiff's performance as a businessman and the reasons for the failure of his business.)
In these circumstances, he proceeded to make his findings on the basis that it was necessary to form his own view, drawing upon the evidence of the various witnesses and the medical literature to such extent as he thought it appropriate to do so. Mr O'Brien submits that that was the wrong approach, and that if he found the expert witnesses' evidence unacceptable he should nevertheless have adopted the views expressed by Dr Barker, so far as they could be discerned from his notes and the letters which he wrote. I do not think that this submission can be right. Lord Bridge defined the role of the expert witnesses in this situation as that of "informing" the judge so as to guide him to the correct conclusions, It must be for the judge to gauge the weight and usefulness of such assistance as he is given and to reach his own conclusions accordingly. And he was entitled, in my judgment, an already stated, to decline to go so far as to treat Dr Barker as an expert witness who happened not to have been called.
It is unfortunate that the trial was hi-jacked by the expert witnesses as it was. To pursue the metaphor, expert witnesses are armed with the Court's readiness to receive the expert evidence which it needs in order to reach a fully informed decision, whatever the nature of the topic may be. But their evidence ceases to be useful, and it may become counter-productive, when it is not marshalled by reference to the issues in the particular case and kept within the limits so fixed. Identifying those limits is the primary responsibility of counsel and, if necessary, of the judge. When they are exceeded, or not made sufficiently clear, then the hearing is likely to be lengthened and the judge's task becomes more onerous than it already is. Properly informed, he must decide the issues to the best of his judgment, depending ultimately on the exercise of common sense in the light of the evidence he has heard. Lord Bridge in McLoughlin v. O'Brien also quoted from Lord Wright's speech in Bourhill v. Young [1943] AC 92, with regard to the proper ambit of the duty of care :-
"The lawyer likes to draw fixed and definite lines and is apt to ask where the thing should stop. I should reply it should stop where in the particular case the good sense of the jury or of the judge decides .... " (p.110).
(c) The law
For reasons which I hope will become apparent, it next becomes necessary, in my judgment, to consider the authorities which indicate the correct approach. These have been referred to by Stuart-Smith L.J. and I would summarise their effect as follows. Although grief and suffering by others, even mental injury, is the foreseeable result of causing injury or death to a primary victim, the tortfeasor is not liable to those others for such consequences of his negligence unless two conditions are satisfied. For reasons of policy, the recovery of damages is limited to those in a close and loving relationship with the victim and who were themselves connected with the accident in time and place e.g. as a bystander and direct viewer : McLoughlin v. O'Brien [1983] A.C.410 and Alcock v. Chief Constable of South Yorkshire Police [1992] A.C.310. Both conditions must be satisfied, and the person who seeks to recover damages must prove that he or she has suffered mental illness ("nervous shock") as the result of the traumatic experience : Hinz v. Berry [1970] Q.B.40.
This policy result has been achieved by limiting the scope of the defendant's duty of care to those who foreseeably were directly (the primary victim) or indirectly (the secondary victim) affected by the defendant's negligent act: see Jaensch v. Coffey (1984) 155 C.L.R. 549 (H.C. Aust.).
It is trite law that if the plaintiff is a person to whom a duty of care was owed, then damages are recoverable for the breach of the duty, subject to the damages claimed not being regarded as "too remote" a consequence of the breach. That this is the correct approach in principle is confirmed, in my judgment, by the recent (majority) decision of the House of Lords in Page v. Smith [1995] 2 WLR 644. The defendant could reasonably foresee that the plaintiff might suffer physical injury, but not mental injury ("nervous shock"). Nevertheless, he was liable for the latter as well as the former, because he owed the plaintiff a duty of care and had caused a kind of injury for which damages are recoverable in law.
The present case is one where, admittedly, the defendant owed the plaintiff a duty of care and the duty was broken. In order to recover damages, the plaintiff has to prove that his involvement in the accident, though as a bystander, caused him mental injury. If so, then in principle he is entitled to recover damages for the illness he has suffered. But if he fails to prove that there was a causal link between his illness and his involvement in the accident, then his action fails.
Damages for mental injury do not include compensation for feelings of grief and bereavement which are not themselves symptomatic of illness; indeed, they are identified as the "normal" consequences of such a bereavement, when it occurs. That the damages are limited in this way was established, in my view, by the Hinz v. Berry decision. This is not the policy- induced rule, recognised in McLoughlin v. O'Brien and later decisions, which limits the scope of the duty of care, but rather a restriction on the heads of damage which may be recovered by a successful plaintiff. In technical legal terms, damages for "normal" grief and suffering may be said to be too remote to be recoverable in law.
What if the plaintiff, who was a secondary victim and was owed a duty of care by the defendant, has suffered mental illness which properly should be regarded as a consequence both of his experience as a bystander and of an intense i.e. more than normal grief reaction to the bereavement which he suffered? This presupposes that the mental illness can be ascribed to both causes by medical science, rather than to one, and that the causes can be regarded as independent, or several, rather than joint i.e. combined causes of the resulting mental state. In such a case, are the damages limited to compensation for that part of the mental illness which can be ascribed to the experience rather than to the grief? As it has tended to be expressed in the present case, must the damage be discounted for grief and the consequences of bereavement, even if the plaintiff's illness was partly so caused?
In my judgment, this particular issue is not covered by the authorities, and I would hold that the damages for mental injury should not be discounted in this way. Hinz v. Berry held that damages are not recoverable for feelings of grief and bereavement, but it was not suggested there that those feelings had worsened into illness or were partly the cause of the plaintiff's illness. In Calascioni the illness caused by grief (PGD) was found to have a subsequent post-accident cause. The question, in my view, is one of remoteness of damage and of the kinds of injury for which damages may be recovered. Mental injury suffered in consequence of witnessing at first hand an accident involving a loved one as its primary victim is actionable in law. In principle, damages are recoverable for injury caused partly by the negligence of the defendant, even if there was another cause and the negligence was only a contributory cause : Bonnington Castings v. Wardlow [1956] AC 613 (this leads to the proposition that the plaintiff is entitled to recover damages for an injury caused or contributed to by the negligence of the defendant, provided that it was a "substantial" or "significant" contributory cause). Mental illness, as distinct from grief and other emotional sufferings resulting from bereavement, is a kind of injury which is recognised by the law. Therefore, I would hold that damages are recoverable for mental illness caused or at least contributed to by actionable negligence of the defendant i.e. in breach of a duty of care, notwithstanding that the illness may also be regarded as a pathological consequence of the bereavement which the plaintiff, where the primary victim was killed, must inevitably have suffered.
If this is a correct view of the law, then it has the following advantages for the trial of cases such as this. First, it is unnecessary to research into the niceties of psychiatric medicine in order to discover whether part, and if so what part, of the plaintiff's illness should be ascribed to bereavement rather than to the traumatic experience of witnessing the accident. Perhaps these are questions which even the experts find it difficult to answer - Dr Cuthill said more than once that he finds it impossible to do so, even now more than ten years since he first treated the plaintiff and after much research has been published. And it must be remembered that the only reason for making the inquiries, if they are necessary, is to set a limit to the damages which are recoverable by a plaintiff who has established the right to sue. The number of such persons is restricted, for policy reasons, in order to limit the exposure of defendants to claims by those who were only indirectly affected by their acts. I do not see any policy reason for limiting the damages in the way that is suggested, particularly when the line between recovery and non-recovery would or might depend upon a detailed psychiatric inquiry in every case. If the plaintiff was owed a duty of care, then he should recover, in my view, damages for the injury which he has sustained i.e. the illness from which he suffers. After all, even if his illness is partly attributable to the pathological consequences of grief and bereavement, it was nevertheless caused by the defendant's negligent act, and the policy reasons which limit the scope and number of those to whom a duty is owed do not provide equal justification for limiting the damages recoverable by those who can sue (see also "Policy and Flexibility" Clerk & Lindsell on Torts (17th ed.) para. 7-51).
Secondly, the practical consequence of the submission for the defendants seems to be this. Only a plaintiff who had a close and loving relationship with the primary victim can recover damages, but the damages would have to be assessed so as to exclude the consequences of the bereavement which the plaintiff must have suffered, if the loved one was killed. This in my view would be an unrealistic and artificial exercise, just as the judge found that he could not do better than make an "educated guess" as to what the extent of the plaintiff's grief reaction would have been if he had been a person of normal fortitude and not particularly vulnerable in circumstances of stress. If the law is, simply, that a plaintiff who is entitled to sue (who was owed a duty of care) can recover damages for mental illness caused or contributed to by his involvement as a secondary victim of the accident, notwithstanding that his illness may also be described as, in part, a pathological grief reaction to the bereavement which he has suffered, then it is unnecessary to embark on the process which the judge, not surprisingly, found both abstract and difficult in the present case.
(d) The evidence
It is essentially on this issue that I find myself constrained, reluctantly, to differ from the conclusion reached by Stuart-Smith L.J. on this part of the case. I approach it, for the reasons given above, on the basis that the evidence of the lay i.e. the factual witness shows that the plaintiff's mental health declined after the accident to such an extent that he was showing symptoms of mental illness early in 1983, and in the light of the defendant's admission that he had an experience which, grief and bereavement apart, might cause mental injury to a person of reasonable fortitude - which he was not. The plaintiff's expert witness, Dr Cuthill, ascribed the illness in part to the post-traumatic consequences of that experience, and he was unable to distinguish between those consequences and symptoms of grief and bereavement which undoubtedly contributed to his metal deterioration also. The defendant's expert witnesses sought to distinguish between PTS and PGD as though they are universally recognised and mutually exclusive categories, or rather, labels for two such categories of mental illness, which I do not believe that they are. The publication DSM 111 R itself contains a number of cautions, including the following which was quoted by the Judge :-
"Although this manual provides a classification of mental disorders, no definition adequately specifies precise boundaries for the concept `mental disorder' ....... There is no assumption that each mental disorder is discrete entity with sharp boundaries (discontinuity) between it and other mental disorders, or between it and no mental disorder ...." (p.222).
First, the defendants' experts' evidence does not persuade me that it is wrong to ask, if the plaintiff did suffer from mental illness after 1982 and before 1986, simply whether that illness was at least contributed to by the experience of witnessing the accident. If that question is asked, I find it impossible as a matter of common sense to distinguish between the effect upon his mind of seeing the accident, which was especially traumatic for him because he knew that his children were victims of it and were almost certainly dead, and the effects of grief and bereavement which became inevitable when he knew that they had in fact been killed. I do not see how he could avoid recalling what he had seen without the anguish of knowing that they were involved, nor remember them without recalling the awful circumstances in which they died. Indeed, part of Dr Swan's written evidence seems to suggest that the experience and the grief are necessarily inter-related in this way. She went so far in her second Report as to say that, in her view, "had Mr Vernon not witnessed the aftermath of the accident in the way that he did, ... the grief that he subsequently experienced might have been worse, because he would have been likely to have had fantasies about the accident, even more distressing than the circumstances were" (paragraph 14). She said in the same paragraph "While it might appear to be commonsense that the sight of the accident would cause nervous shock to Mr Vernon, I do not think that there is any evidence that this occurred". I would be strongly inclined to allow common sense a greater part : but it is sufficient for present purposes to note the linkage between grief and the experience which she allows may exist.
Secondly, the defendant's case was that the plaintiff suffered from a form of mental illness - paranoid personality disorder - long before the accident, and although this allegation failed, the judge nevertheless found, and both parties accept, that he was particularly vulnerable to stress and had been so throughout his adult life. Thus, he reacted adversely and sometimes with physical symptoms to various crises in his army (ages 18-27) and business (ages 28 to 40) careers. Yet the defendants' experts assert that he was unaffected, so far as his mental condition was concerned, by what they acknowledge was one of the most traumatic experiences that any person could have the misfortune to undergo. That would be surprising in any event, and it becomes unacceptable, in my view, when the evidence shows that he did become mentally ill after the accident; the illness cannot have been entirely caused by feelings of grief in which mental turmoil caused by his witnessing the accident played no part. The more vulnerable that he was, and the more frequently he had reacted aversely to stress before 1982, the less likely it seems to me that he was unscathed by witnessing the accident then.
I therefore would hold that the evidence proves that the plaintiff suffered mental injury by reason of the accident in 1982 and that this was contributed to, if not entirely caused, by the fact that he witnessed its aftermath as he did. But, strictly, my view on this issue is irrelevant. The judge held that witnessing the accident was the initiating cause of the plaintiff's mental decline which began after the accident and continued thereafter, with further impetus from the subsequent failure of the business in 1986 and the breakdown of his marriage in 1992. He also found that the failure of the business would not, of itself, have caused mental illness, because of the plaintiff's well-developed "defence mechanisms" to that kind of event. There was evidence both factual and expert which supported these conclusions, and I do not feel that we should interfere with them.
I would also express my entire agreement with the judgment of Thorpe L.J., particularly with regard to the appellant's submission that damages can only be recovered for the kind of mental illness currently, but not universally, classified as PTSD, as distinct from PGD. As medical science advances, these or different categories may come and go. The duty of the courts, as I see it, is to take account of contemporary knowledge and to decide whether the plaintiff has suffered mental injury caused by the negligence of the defendant, and then to apply the policy limits on recovery which have been identified in Alcock and elsewhere, and which may themselves change with the law.
(e) Causation post-1986
I have been troubled by the thought that the correct analysis of the plaintiff's symptoms since 1982 might be along the following lines. Already a vulnerable personality, he suffered mental illness in consequence of seeing the accident in August 1982, combined with effects of grief and bereavement upon his by-now-disordered mind. During the next three years, however, as he concentrated on the waning fortunes of his business, he effectively recovered from this illness, or at least it was overtaken by the effects of two further blows: the minor car accident in which he was concussed in December 1985, and then the collapse of his business in January 1986.
Because the defendants have denied throughout that the plaintiff was ill before 1986, or indeed until after his wife left in 1992, they have never stated their case in this way, even in the alternative, as regards the period before 1986. There is no evidence, therefore, directed to the question whether the plaintiff could have recovered by 1986 from mental illness caused by seeing the accident in August 1982. Their contention that any illness which he has suffered was solely caused by events in 1986 and subsequently was rejected by the judge. I have wondered whether it should be accepted to the limited extent referred to above i.e. that they caused a separate illness in and after 1986.
If that was the correct approach, then the plaintiff would be entitled to recover a presumably smaller amount by way of general damages, but only a negligible sum as special damages - the great majority is claimed to have been suffered after 1986.
I have come to the conclusion that it would be wrong to recast the case for the defendants in this way. No evidence was directed towards this possible explanation, and the explanation itself is no more than a partly-informed guess from the evidence that was given as to the plaintiff's mental state. We were not invited to consider it, and in my judgment we should not take it upon ourselves to do so.
I would add, in deference to Stuart-Smith L.J.'s view that some inference may be drawn as to what Dr Barker's evidence would have been, if his report had been available or he had been called as an expert witness, that Dr Barker saw the plaintiff for the first time in April 1986, and so he could only speak with first-hand knowledge of the plaintiff's mental health after the business had collapsed and what was on any view an aggravating factor had occurred (two, if the motor accident was significant also). Even if it is correct to infer that his evidence would have supported the defendant's case as to the cause of the plaintiff's condition at that time, this would not contradict Dr Cuthill's evidence that the defendant was ill before 1986 and that the cause or causes of the illness at that time were what Dr Cuthill believed them to be.
Conclusions
For these reasons, I would uphold the judge's finding that the plaintiff is entitled to recover damages for mental illness which he suffered after 1982, and with increased severity after 1986, and I agree with it on the basis of the evidence which he heard.
Damages
It is sufficient for me to say that I agree with the judgment of Stuart-Smith L.J. in all aspects of damages, interest and costs, for the reasons which he gives.
I would dismiss the appeal against liability but reduce the amount of the judgment accordingly.
Lord Justice Thorpe:
The Issue of Liability
In the latest House of Lords case, Alcock v Chief Constable of South Yorkshire [1992] AC 310, Lord Oliver of Aylmerton at page 411F classified what the plaintiff had to establish in order to succeed as follows:
"The common features of all the reported cases of this type decided in this country ...... and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff`s nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff`s perception of it combined with a close relationship of affection between the plaintiff and the primary victim."
Of these five features there was in the present case no issue as to numbers one, three and five. Liability turned upon the second and fourth features. The second feature requires the successful plaintiff to establish that he has suffered injury from nervous shock. In Hinz v Berry [1970] 2 QB 40, Lord Denning MR at 42H said:
"Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."
Subsequently in McLoughlin v O`Brian [1983] AC 410, Lord Wilberforce said at 418A:
"Although we continue to use the hallowed expression `nervous shock`, English law, and common understanding have moved some distance since recognition was given to this symptom as a basis of liability. Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact."
Lord Bridge of Harwich at page 431G said:
"The basic difficulty of the subject arises from the fact that the crucial answers to the questions which it raises lie in the difficult field of psychiatric medicine. The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness."
In the court below Mr O`Brien argued, amongst other things, that there were two essentially relevant medical diagnoses. The first was post traumatic stress disorder (PTSD) and the second was pathological grief disorder (PGD). On his presentation, in order to succeed the plaintiff had to prove PTSD. If all he established was PGD then, in Mr O`Brien`s submission, he failed on the application of the principle which he said was contained in the judgments in Hinz v Berry and expressed in the following sentence in the judgment of the Master of The Rolls:
"Somehow or the other the court has to draw a line between sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable."
It may be that Mr O`Brien was encouraged along this path by the unreported case of Calascione v Dixon heard in this court on 30th July 1993. From the judgment of Neill LJ it is clear that the case below proceeded on that footing. He quoted the following passage from the judgment of French J:
"There are, as I hope will be apparent already, two psychiatric illnesses to consider: PTSD, the first; and PGD, the second.
As to the first - PTSD - that is almost, by definition, a condition due to the accident, the collision or its aftermath. That is the trauma which forms part of the title of the condition.
The second - pathological grief disorder - almost, though not quite, by definition is not."
That Neill LJ approached the case on a wider basis seems to me plain by his definition of the issue in the appeal in the following paragraph:
"The crucial question to be answered in this case is whether the sights and sounds which Mrs Calascione experienced on 21st December 1985, caused or contributed to her PGD and, if so, for how long."
I myself would be against confining in any way the type of "recognisable psychiatric illness" which Lord Denning stated to be the medical definition of "nervous shock". Hinz v Berry was an appeal on quantum and not liability but the psychiatric illness for which damages were assessed was, according to the report of the consultant psychiatrist, "morbid depression". In the case of Bryce v Brown [1984] 1 AER 947 my lord, Lord Justice Stuart-Smith, having cited the passages from the speeches in McLoughlin v O`Brian, said at 1006H:
"Nevertheless all their lordships in that case continued to use the phrase `nervous shock`, albeit in inverted commas. I think it is a convenient phrase to describe mental injury or psychiatric illness to distinguish it from, on the one hand, grief and sorrow and, on the other, physical or organic injury. The psychiatric illness does not have to have any particular label or term of art applied to it."
In fact the psychiatric condition proved by the plaintiff in that case was a hysterical personality disorder.
The evidence in the present case established that the diagnosis of PTSD seems to have entered medical literature in 1980 with the publication of DSM-III by the American Psychiatric Association. That classification was revised in 1987 and labelled DSM-III-R. It was the diagnostic classification in DSM-III-R that Mr O`Brien relied upon at the trial. DSM-III-R may provide the medical profession with a useful diagnostic tool but PTSD and its DSM-III-R classification should not, in my judgment, be adopted in personal injury litigation as the yardstick by which the plaintiffs` success or failure is to be measured. First PTSD is not a bespoke measure for the purpose of nervous shock litigation. It was produced for other purposes and is itself of a much wider range; for instance a victim of sexual abuse may subsequently develop PTSD. Furthermore it is but one of many relevant psychiatric diagnoses. The fact that it is a diagnosis that necessarily involves a shock is not a reason for elevating it to the exclusion of other psychiatric illnesses that may be shock induced. Although in personal injury litigation it is sometimes said that the plaintiff must show shock to the nervous system or shock to the mind what ultimately is in issue is psychiatric illness whether it be the product of shock to the mind, to the nervous system or to the psyche. Second, medical science in this field is continuously expanding and evolving. The concept of PTSD is still relatively recent and its evolution is certainly not complete. Indeed in time it may be superseded by some different concept. Third, developmental disorders of personality as opposed to mental illness seems to me to be unusually difficult to classify and define in the concrete terms within which physical illness can usually be defined. Fourth, within the range of available expertise there is a wide divergence of stance and terminology between the psychiatrist who treats psychiatric illness largely chemically and the psychiatrist who favours a psychodynamic approach that emphasises the importance of the patient's unconscious. I suspect that the medical utility of the DSM-III-R classification would be differently assessed across this front line of medical expertise. Finally, DSM-III-R is not the only diagnostic manual. The World Health Organisation has produced the ICD-10 classification which defines PTSD in similar but nonetheless different terms.
Of course there is attraction in PTSD as a yardstick in these difficult cases for the reason expressed by French J. But if a plaintiff proves PGD as well as all the other necessary features of success as defined by Lord Oliver of Aylmerton in the passage cited, in my judgment he is entitled to succeed. PGD may be a recognisable psychiatric illness as is plainly demonstrated by the article by Dr Murray Parkes relied upon by Sedley J. Perhaps because the article was submitted for publication in January 1984 it does not list PTSD as a specific psychiatric disorder in relation to bereavement.
Of course in the present case it was plainly strategically attractive to Mr O`Brien to present PTSD as defined by DSM-III-R as the essential yardstick since the plaintiff was clearly in difficulty in picking up sufficient ticks within boxes B, C and D of the diagnostic criteria set out on page 250 of the manual. But psychiatric illness is too complex and insufficiently concrete to be subjected to such a rigid analysis. It is in my judgment regrettable that so much of the expert evidence at the trial was concentrated upon what seems to me to be clearly the wrong test. Mr Justice Sedley was absolutely right to reject, as he did at pages 150 and 229 of the judgment, the submission that the issue was PTSD as defined in DSM-III-R or nothing.
One of the most unfortunate aspects of this trial is that the expert evidence called by the parties failed to give the judge the help that he deserved. Of the three psychiatrists who had held clinical responsibility for the plaintiff`s illness over more than a decade preceding trial only two were called and only the first had been approached for medico legal opinion initially. The judge found that they, together with the behavioural psychotherapist to whom one of the three had referred the plaintiff were all flawed in that they had assumed the very thing that the plaintiff was required to prove. The two psychiatrists called by the defendant, neither of whom had any clinical experience of the plaintiff, he judged to be parti pris.
Of course there are both advantages and disadvantages for the expert in having carried a clinical responsibility for the plaintiff. From the doctor-patient relationship there might develop a sympathy for or identification with the plaintiff that jeopardises objectivity. Against that the clinician has the opportunity to develop an understanding of the plaintiff and his condition developed over an extensive relationship for which the assessment consultation of the medico-legal specialist can be no substitute.
Not only did Sedley J complain of these shortcomings in the expert witnesses but also of the fact that claims to legal professional privilege had denied him a sight of the letters by which they were instructed - see the judgment at page 153.
The use of psychiatric evidence in the Family Division expanded dramatically in the 1970s. Real difficulties were encountered with experts whose contributions were marred by lack of necessary experience, inadequate preparation, partiality or the failure to seek agreement, or at least reduction of issues, with other experts in the case in advance of trial. A number of judgments have been given at first instance in order to state clearly the requirements and the expectations of the court. A clear statement was made by Cazalet J in Re R [1991] 1 FLR 291. Practical extensions were made by Wall J in Re AB [1995] 1 FLR 181, Re C, in the same volume at 204 and Re G [1995] 2 FLR 291. Of course proceedings in the Family Division are not purely adversarial. Proceedings under the Children Act 1989 or in wardship are quasi inquisitorial. Even in ancillary relief proceedings authority clearly establishes the existence of a duty of full and frank disclosure owed by the litigant to the court arising out of the statutory function imposed on the judge by the Matrimonial Causes Act 1973. Thus where experts come to testify and in so far as there is a conflict between the experts duty to the court and his duty to the party instructing him, the duty to the court manifestly prevails. Once an expert is instructed, privilege does not attach to the resulting communication. The letter of instruction must be disclosed if called for as must be any report that results, even if it is fatal to the case of the party instructing the expert.
Some similar principles seem to govern the contributions of experts in the commercial court. In the Ikarian Reefer [1993] 2 Lloyds Law Reports at 81, Cresswell J defined the duties and responsibilities of expert witnesses in civil cases citing the decision of Cazalet J in Re R. His statement was endorsed with one small caution in the subsequent judgment of this court.
Any reading of the transcripts of the expert evidence in this case demonstrates how amply justified was the judge`s conclusion that all were flawed and some were parti pris. Of the seven experts called two were psychologists who had had only a forensic role. They have hardly been mentioned throughout this appeal. Of the remainder, three had treated the plaintiff, namely Dr Cuthill, Dr Lloyd and Mr Mackay, the behavioural psychotherapist. The plaintiff had been referred to Mr MacKay by Dr Barker, the psychiatrist who formed the middle link in the clinical chain. He was not called by either party and I conclude that the judge was right to be guarded in attaching weight to his clinical notes which were not even transcribed let alone explained. Dr Cuthill was exhaustively cross examined on his notes irrespective of the fact that the earliest of them was made over ten years before he entered the witness box. At the time that he commenced his treatment of the plaintiff the term PTSD had hardly entered general psychiatric parlance in this country. Between his first consultation on the 11th March 1983 and his last in December 1987 he prescribed at different times and in different doses Fentazin, Nortamid, Triptafen, Merital, Welldorm, Delmane, Fluanxol, Doxepin, Gamanil and Ludiamil. Between the date of the accident and his first consultation with Dr Cuthill the plaintiff was prescribed only Ativan. Until Dr Barker referred the plaintiff to Mr MacKay no treatment was attempted other than the prescription of these various drugs. Against that bare medical history, let alone the abundant lay evidence it might seem that the defendant attempted a considerable hurdle in asserting that the plaintiff had not sustained any psychiatric illness in the aftermath of the fatal accident. There case rested almost entirely upon the evidence of Dr Gaind and Dr Swan.
Dr Gaind was instructed in 1988 and examined the plaintiff at the plaintiff`s home on 6th April 1988. At the time Dr Gaind was physician in psychological medicine with the Guys group of hospitals. However his report was not written until 7th December 1990. His report concluded with this passage:
"The death of his children did set him back a little but did not produce a severe depression. Mr Vernon had grieved properly and recovered from bereavement within a short time. Business worries, loss of business, domestic worries, bereavements and accident in 1985 seem to have triggered off more serious depressive episodes requiring treatment with antidepressants."
That stance obviously supported the defendant`s case to the hilt. Dr Gaind examined the plaintiff again on the 21st July 1993 and wrote his second report on 16th August 1993. For the purposes of that examination Dr Gaind had read some of the plaintiff`s medical evidence, witness statements and disclosed documents. At the end of the report he expressed his opinion in over three and a half pages. Amongst other things he said that the plaintiff was suffering from two distinct mental disorders, major depressive episode and dysthymia. He said the plaintiff was dependant upon psychotropic drugs. He said that the plaintiff suffered from paranoid psychosis. He reiterated his previous opinion that the plaintiff had suffered a normal uncomplicated bereavement for the death of his daughters. He ended the report with the short sentence:
"Finally I do not believe he does, or ever did, suffer from post traumatic stress disorder."
By that date Dr Gaind held the post of consultant neuropsychiatrist at the Guys group of hospitals. Again his conclusions fully supported the defendant`s case. Nevertheless the defendants` chose to instruct a second psychiatrist, Dr Marion Swan. When they instructed her is not clear to me. Mr O`Brien`s procedural chronology records the plaintiff agreeing to examination by Dr Swan on 13th August 1993 and the examination itself on 7th September 1993. Thus even if Dr Swan were instructed before Dr Gaind`s second report, the decision to proceed to examination and report was taken subsequently. What was the need to introduce a second psychiatrist? Mr O`Brien justified it on two grounds. He said that since the plaintiffs` had two psychiatrists the defendants` wanted two and the defendants` application for leave was bound to succeed on that simple principle of head counting. If that is the practice in personal injury litigation it is a bad practice. Both the psychiatrists instructed by the plaintiff were necessary to establish the clinical history and only one had been approached for a medico-legal opinion. If a party seeks to justify the instruction of a second expert in the same field exceptional justification is surely required. Second Mr O`Brien said that Dr Swan was a recognised authority on post traumatic stress disorder. That suggestion is not borne out by her curriculum vitae. It runs to seven pages and reveals a distinguished career in forensic psychiatry in Durham and Cleveland. As an expert in criminality and dangerousness Dr Swan served as a member of the parole board both in the 1980s and again in the 1990s. In September 1992 she left her post in the National Health Service as a consultant forensic psychiatrist to develop a practice as a freelance consultant in forensic psychiatry. The only reference to PTSD comes on the final page where she states the third of her recent research interests as `currently undertaking research into personal injury claims for PTSD`. When the trial had been running for nearly eight weeks she filed an addendum to her report in which she amplified her experience in cases of PTSD and bereavement. She said that she had treated victims clinically over a wide range of cases and from involvement in a specific incident had developed a particular interest in mass murder, lecturing extensively on the topic. The purpose of the addendum was to express her opinion on the evidence of the plaintiff and other witnesses having attended most of the proceedings during the first six weeks of the trial. Similarly during the adjournment between days 64 and 65, Dr Gaind wrote a supplementary report for the same purpose. His addendum opens with the sentence:
"Since the beginning of this trial on 11th January this year I have attended court on many days."
Now it may be that neither Dr Gaind nor Dr Swan were aware of their duties and responsibilities as defined in the Ikarian Reefer. As the judge found they did not fulfil those duties and responsibilities, specifically because they lost objectivity and became parti pris. The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement. It seems to me that the experts difficulty in resisting the temptation and the blandishments is much increased if he attends the trial for days on end as a member of the litigation team. Some sort of seduction into shared attitudes, assumptions and goals seems to me almost inevitable. I would more tentatively hazard that it is likely to be easier for the expert holding a current NHS consultancy or a chair in medicine to maintain detachment than one whose principal responsibility is to undertake medico-legal work. The responsibilities and anxieties of the clinician presumably help to maintain a balanced perspective of the court room contribution.
Not only does the daily attendance of the expert jeopardise detachment but it inflates the cost of litigation. The practice direction that requires the parties to file a detailed schedule of costs expenditure which applies to financial claims in the Family Division is not known in personal injuries litigation. But in a written submission on the interest point from Mr Blunt he stated that the plaintiff`s legal aid costs below were estimated to be £1,028,000.00. He put the defendant`s costs below at £1M. Mr O`Brien subsequently commented that the figure was speculation but he did not take the opportunity to proffer any other figure. In the absence of information I would infer that the defendant`s costs exceeded the plaintiff`s since amongst their disbursements were the cost of daily attendance by Dr Gaind and Dr Swan for a substantial proportion of the hearing. That the legal costs of determining the plaintiff`s entitlement should exceed £2M simply demonstrates that in the intensity of the fight all sense of proportion was lost.
Of course it is over two years since the opening of the trial. In that interim there has been the Lord Chief Justice`s practice direction of 24th January 1995 on case management. What it requires of the judge was anticipated by Sedley J who on the 64th day imposed time limits on the evidence of the remaining witnesses and required counsels submissions in writing. Then in June 1995 Lord Woolf`s interim report, Access to Justice was published. Chapter 23 in section v demonstrates how widespread are the problems encountered by Sedley J with the medical experts. Although specific cases illustrating the general problem are no doubt legion this trial is hopefully amongst the most extreme. A number of the recommendations proposed in chapter 23 should ensure that it survives only as a memorial to bad past practice.
The views which I have expressed above on the medical issues and evidence lead me to the clear conclusion that the appeal on liability fails. Sedley J conducted a most profound and impressive analysis of the plaintiff`s medical history, work history, and personality. In particular he analysed the plaintiff immediately prior to the accident, the accident and its aftermath, what had happened to the plaintiff, and the plaintiff at trial. The manner in which Sedley J expressed his findings and conclusions demonstrates the profundity and sophistication of his analytical survey. Of course in a judgment extending to no less than 262 pages the appellate advocate will always find material to justify a submission of inconsistency, oversight and misdirection in law. The judge was faced with an extremely complex task necessitating the review of a mass of evidence both documentary and oral. Within that mass there is ample that might have led to a verdict for the defendant. But the judge`s appraisal led him to the conclusion that the plaintiff was entitled to succeed on liability and the appellant has not in my judgment demonstrated any misdirection on the route to that conclusion.
Quantum Issues
The argument regarding the quantification of loss of earnings is for me finely balanced. The plaintiff`s case rested on the evidence of Mr Sedden whose expertise was considerable. At day 67, page 94, b., he said in cross examination:
"But I do want you to understand that I have tried to be fair to the court and be conservative in what I feel Mr Vernon would have earned. I have not sought to exaggerate it and I have sought to base it on what I felt his experience and success as a young man would have led him to achieve in later life."
Furthermore the defendant`s expert did not chose to enter any serious challenge in this field.
On the other hand there is an obvious danger that Mr Sedden assessed the earning potential of the man that the plaintiff presented himself to be and not the man that the judge found him to be. The detailed basis of Mr Sedden`s instructions was also withheld by the claim to privilege and the judge expressed his dissatisfaction with that unreality at page 95, g., of the same transcript. The point was taken in cross examination by Mr O`Brien in the following exchange with Mr Sedden:
"Q. I take it you have read his statement?
A. Yes, I have had sight of it. Yes.
Q. Did you give the advice you gave on the basis that that statement represented the truth? Is that the basis upon which you have given it?
A. The advice I gave was before I had read that statement.
Q. Yes, but having read that statement is your advice now, at this point in time, on the basis that statement was true?
A. Yes.
Q. Were you in court when he gave evidence?
A. No.
Q. So the final version of your view is on the basis that statement is all true and correct, and gives a correct impression of Mr Vernon?
A. Yes."
An attempt by Mr Marks to retrieve the position at 95 did not go far:
"Q. Mr O`Brien asked you about the information upon which you based your report and about CVs, the statement and so forth. Can you say in a nutshell what the information was upon which you based your understanding of Mr Vernon`s track record?
A: The principal information I based it on was success in a blue chip company, ie Rank Xerox at almost its apex. It was at its strongest then. It was competing in new markets, new products were coming along. It was one of the best UK based professional sales companies. To have survived and prospered in that environment, as Mr Vernon did, indicates to me that he had something worth selling. That was the prime basis on which I would have based it."
On the basis of that evidence I conclude that Mr O`Brien`s submission succeeds. Not only should the judge have adopted the lower scale postulated for the plaintiff on the assumption that Paraero would have failed in any event but a further reduction was required to reflect the difference between Mr Sedden`s view and the judge`s view of the plaintiff`s track record.
I am thus in agreement with the reduced quantification proposed by my lord, Lord Justice Stuart-Smith. I am also in agreement with the need to increase the discount to reflect periods of unemployment to the figure which he has stated. I am also in agreement with his conclusions on the other areas of quantification, upon the claim to interest, and upon the issue of costs.
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