England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE MICHAEL QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 21st November 2001

Wednesday, 21st November 2001

1. LORD JUSTICE SIMON BROWN: Lady Justice Hale will give the first judgment.
2. LADY JUSTICE HALE: This is a claimant's application for permission to appeal against the order of His Honour Judge Michael Kennedy QC, sitting at the Brighton County Court, on 31st July 2001. He gave judgment for the claimant in a personal injuries action for a total of just over £19,000, comprising £11,000 for pain and suffering; £7,500-odd for special damages; and interest.
3. The claimant was involved in a nasty road traffic accident on 31st October 1997. He was run into from behind whilst stationary on the M27. At the time he was a senior manager in a large construction company. He was trapped in the vehicle for some time. It was a terrifying ordeal. He suffered soft tissue injury to his cervical spine. He wore a neck support until March 1998. There was damage to the left arm and nerve which was surgically transposed. His symptoms gradually subsided. Fractures to his vertebrae were suspected but not confirmed. Other problems reported were urinary incontinence and impotence.
4. The main problem identified by the judge was as to the mental or psychological sequelae of the accident, the extent to which the accident as a whole had impinged upon his preexisting health and personality, and the extent to which the claimant had deliberately chosen to present as someone who was permanently or substantially unable to return to anything like his pre-accident working capacity (para 5). The judge pointed out that the pre-accident work and health history was not straightforward. He also took an unfavourable view of the claimant's reliability as a witness. He concluded:

1. The accident had put the claimant physically out of action for about eight months, until June 1998. There was no loss of earnings involved because his employer had paid his salary in full until December 1998.

2. After the accident the claimant had:

"... in part sheltered behind the fact of his accident and its physical sequelae and has in effect constructed a pattern of disability, supported on occasions by exaggeration and invention, to put forward a case of complete inability to work." (para 65)

The claimant could not face going back to his old employment and did not want to go back to anything else. He had had problems in his work before the accident and the accident had not made him less employable than before.

3. The judgment tends to elide questions of the psychological effects of the accident and the claimant's capacity to return to his pre-accident work. But it is clear from the discussion of the psychiatric and psychological evidence that the judge did not accept the claimant's account of his present symptoms, or that his psychological condition after the accident was worse than it had been before. He stated that:

"... the most the court could have said was that the claimant had suffered a reduction, by reason of some continuing psychological sequelae, but additional to his pre-existing mental condition, of his prospects of returning to full pressure managerial work."

But that argument had not been mounted:

"Had it been mounted, it would have been in my view impossible to discern, amidst the exaggeration and unreliable evidence of the Claimant, any clearly defined boundary between the old and the new condition..."(para 69)

4. The award for pain, suffering and loss of amenity therefore covered the soft tissue injuries and some degree of physical worsening of the urinary problems caused by the catherisation of the accident "but to a limited extent" (para 72).

5. There was no award for the psychological effects or the problems with potency which preexisted the accident as there was no conclusive picture that the accident had made them worse (para 71).

6. There was no award for future loss of earnings or future care.

7. He awarded various sums for past special damage.

5. Mr Taylor has mounted a vigorous and eloquent challenge to the judge's findings. First, he argues that the award of general damages was far too low: the orthopaedic injuries were at least worth £5,000, the urinary problems £15,000 and the potency problems £10,000; second, he argues that the judge erred in disallowing the small item of £400 for future urological treatment although both experts had agreed that the claimant needed at least that; third, he erred in allowing nothing for psychiatric injury. Mr Taylor accepts that this court could not substitute its own view on those issues for that of the trial judge, and that were he to succeed on an appeal there would have to be a complete re-trial. In that retrial all the issues would be open to examination, including the matter of future loss of earnings which is so intimately linked to the question of his current psychological condition and its relationship with the accident.
6. All of those are linked to arguments that the judge should not have taken such an unfavourable view of the claimant and his evidence. I sympathise very much with Mr Taylor who pointed out that, if one has a client who suffers from psychological problems, that client is likely to present as a bad witness to the court as a result of those problems. It is a difficult task both to represent him and for the judge to disentangle what is the true position.
7. However, there was before the judge ample evidence of inconsistency and unreliability in what the claimant had told to other people. This meant that the judgments made by other people on the basis of what the claimant had told them had to be treated with some reservation. To this the judge could add his own observation to the claimant in the witness box and in the court, and it was clear that this whole matter was very much in issue from the experts' reports.
8. As to the first ground of challenge the judge had to decide what the present problems were and to what extent they were cause or exacerbated by the accident. The claimant had indeed made an excellent recovery from his soft tissue injuries. There had been some effect from the catherisation after the accident, which was necessary for other reasons, upon his preexisting urinary problem. But having regard to the joint urologists' statement which was before the court, the judge was entitled to conclude that the effect of that upon his problems had not been as great as might have been thought, and to take his own view of the financial value of that. There had been previous problems with potency and the claimant had been completely impotent not long before the accident. The impact of the accident depended more upon whether or not it had affected his psychological problems which in themselves might have had an effect upon his potency. The matter therefore turned to a very large extent upon the question of the claimant's psychological problems.
9. There was a substantial pre-accident psychiatric history. There had been a long period of treatment for recurrent depressive disorder, including two periods of hospitalisation for not insignificant periods of time. The claimant was continuing to receive treatment from a consultant psychiatrist. He had only quite recently returned to work, in the previous July. His psychiatrist considered that he was well on the way, if not completely on the way, towards recovery; but on the other hand very shortly before the accident had written expressing serious concern about the claimant's excessive alcohol consumption.
10. There was a disagreement in diagnosis between independent expert psychiatrists who gave evidence. Originally the psychiatrist for the claimant had diagnosed post-traumatic stress disorder and the psychiatrist for the defendant had diagnosed long-term, that is pre-existing, somatisation disorder. The claimant's psychiatrist had substantially modified his views by the time of the joint statement made in August 2000. In his most recent report he stated that he found difficulty in explaining the constellation of symptoms now reported. There was therefore shared deep suspicion of the claimant's current presentation.
11. I need do no more than quote from the report of Dr Rogers, the jointly instructed psychologist:

"In summary, I question the accuracy of Mr Palmer's reports for the following reasons: his reports of bizarre, constant and long-term hallucinatory-type experiences which appear not to have been mentioned elsewhere, his extremely impaired scores on neuropsychological testing in the context of no identifiable organic impairment, his below chance scores on a number of recognition tests, his extremely impaired performance on a test of malingering and evidence of an intention to create a false impression on the MMPI within the context of extremely elevated clinical scales. I feel that currently Mr Palmer is not a reliable witness to his own problems and so feel unable to identify or communicate an accurate picture of his psychological state and consequently do not feel able to make comment upon his work potential.

It is clear from the Mr Palmer's history that he is psychologically a very vulnerable individual and I have no doubt that he is indeed suffering a considerable degree of psychological distress. However, given the current way in which he chooses to present himself, it is hard or indeed impossible to determine the extent to which these problems have been either caused or influenced by the accident in question. I suspect a much clearer picture of Mr Palmer's problems will emerge when litigation is over. I would certainly recommend that at that time Mr Palmer seek help for his problems which I believe are likely to be of a different nature and severity to those with which he is currently reporting."

12. That piece of evidence is particularly telling in the context of this case. It amply justifies the conclusion which the judge drew, which was to the effect that, as the claimant had chosen to present a case of complete incapacity as a result of his psychological problems, it was impossible for the court to work out to what extent (if at all) his continuing psychological condition was caused or contributed to by the accident. The fact that he was suffering from a considerable degree of psychological distress and was a very vulnerable individual did not help the judge in resolving that issue.
13. In those circumstances Mr Taylor is entirely right to say that the matter could not possibly be resolved without a complete retrial of the issues. It is difficult indeed for this court to reach the conclusion that the judge was wrong in the conclusions that he drew from all the evidence that was before him, or that his assessment of the level of damages in this case is so plainly outside the range of assessments open to him on that evidence that this court could interfere with it. Mr Taylor wisely does not rest his argument in relation to the small sum for £400 for urological treatment which the judge also disallowed which had been challenged by the defendant on the basis that it was not attributable to the accident.
14. For those reasons I would refuse permission to appeal in this case.
15. LORD JUSTICE SIMON BROWN: I agree.
(Application refused; no order for costs).