England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Hallgarten QC)

		Royal Courts of Justice Strand London WC2 Thursday, 20th December 2001

1. LADY JUSTICE HALE: This is a defendant's application for permission to appeal against the order of His Honour Judge Hallgarten QC made in the Central London County Court on 9th October 2001. The judge awarded the claimant a total of £279,611 damages for personal injuries.
2. The claimant was a fire officer employed by the second defendant, Hampshire Fire and Rescue Service. On 17th July 1995 he and three colleagues were on an emergency call to a chemical incident. The fire engine in which they were travelling was in collision with a large lorry. The fire engine went across traffic lights at red. The claimant, who was in the back seat, realised what was going to happen and turned and braced himself. He suffered a relatively minor whiplash injury to his back and neck. The lorry driver was quite seriously injured, as was the driver of the fire engine. The others escaped unhurt.
3. The claimant sued the driver of the fire engine and his employers. His employers, of course, are the remaining substantive defendant in the case and this is their application. However, this is not a case where an employee sues an employer for psychiatric illness caused by stress at work. The employer is sued as vicariously responsible for the negligence of the fire engine driver. It is a coincidence that it happens also to be the employer of the claimant.
4. Liability for the claimant's physical injuries was admitted. The dispute was about the psychiatric injury, which was accepted to be real, which had eventually forced the claimant to give up work as a fire officer. The defendant denied that this was caused or materially contributed to by the accident.
5. The first question was whether the illness from which the claimant was suffering was post traumatic stress disorder or something else. Dr Schlich, for the claimant, said that it was post traumatic stress disorder. Dr Field, for the defendant, said that it was not. The second question was the cause of his disorder. Dr Schlich concluded that it was caused by the accident, Dr Field that it was caused by a combination of substance abuse, problems with his colleagues in 1997 and the continuing litigation.
6. The difficulty arose because of a substantial delay in the onset of severe psychiatric symptoms. The defendant recorded the injuries at the time of the accident as "whiplash and shock". The following month, August 1995, the occupational health physician referred the claimant to counselling by Mr Easton, a chartered clinical psychologist, because he was emotionally "traumatised". He was also having physiotherapy for his whiplash at the time.
7. The claimant had some sessions of counselling and returned to light duties in October. He was clearly anxious to get back to work. He was dedicated to his career as a fireman. Mr Easton reported, in a letter to the claimant's GP dated 23rd October 1995, in the following terms:

"He described himself as being withdrawn and introverted following the accident and we have endeavoured to work together to help him over the period from [the] time of that accident. Mr O'Reilly appears to have found this work helpful and it is my understanding that he will be returning to work in mid-October for light duties, in the first instance.

My assessment of the situation has been that Mr O'Reilly experienced a normal reaction to an accident which he found distressing and in which he experienced some physical discomfort difficulty which has persisted and maintained that reaction over the period since July. On discussing the situation today he does feel very confident that he will be able to get back into the swing of things at work and I would agree in his anticipation that there would not be any significant difficulty henceforth."

The general practitioner's records for 14th October 1995 have a brief note, which reads, in part:

"RTA ...

PT shock

Physio/counselling

`100% better'"

8. Mr Hubble, on behalf of the applicant defendant, argues that this indicates, through contemporaneous records, a complete recovery at that time. However, Mr Easton was asked to reconsider his notes for the purpose of this litigation. He wrote a letter dated 7th March 2001, which contains the following passage:

"Overall, on re-reading those notes, I do note that Mr O'Reilly saw the accident as most serious and threatening with intrusive recollections of the event, with some avoidance of work in conversations relating to the accident, as well as signs of diminished interest in significant activities and social withdrawal. He also described sleep disruption and difficulty in concentrating, and there is some indication of onset of anxiety as regarded travelling as a passenger in motor vehicles. On reviewing this symptomology it would therefore appear that a formal psychological assessment of Mr O'Reilly may well have led to suggestion that he experienced difficulties meeting criteria for Post Traumatic Stress Disorder, and possibly onset of Phobic Travel Anxiety when travelling as a passenger in motor vehicles as a result of the index accident."

I read that last sentence as meaning "experienced difficulties which met the criteria ...", as opposed to "experienced difficulties in meeting ..." Mr Hubble tells me that Mr Easton's evidence was in accordance with that letter. He was not making a formal assessment at the time and his notes were prepared for the purpose of getting the claimant back to work as soon as possible.

9. The claimant did then go back to work and he resumed normal duties from November 1995. He was referred by his general practitioner for further counselling in March 1997 and by the occupational health physician in June 1997. In the meantime, he had broken up with his girlfriend, he said because of an inability to communicate with her. He also described difficulties in coping, vomiting, outbursts of anger, alcohol binges and various dangerous activities. He gave this account to the psychiatrist, Dr Wear, who began treating him in 1997, and this was corroborated to some extent by his friends, who said that he had never been the same after the accident.
10. Meanwhile, the driver of the fire engine, Mr Jeffrey, was wanting to sue the lorry driver. However, when the claimant was approached by solicitors in January 1997, after a struggle with his conscience, he was unable to back up the fire engine driver's story that he had gone through the lights on green. Ultimately, therefore, the fire engine driver had to drop his claim. There was an atmosphere at work and the claimant experienced some guilt about (as I would call it) "shopping" his mate and depriving him of the possibility of compensation for his injuries.
11. Dr Wear wrote back to the occupational health physician on 2nd September 1997. He retailed the description given to him of symptoms going back to the accident, but taking a turn for the worse in the last six months. These were: impaired sleep; increased alcohol intake; panic attacks; feelings of dread; relieving pressure by doing dangerous things, including breaking into a house and smashing windows, and setting fire to a pile of timber and watching the fire brigade put it out. His diagnosis was as follows:

"[The claimant] has a depressive illness which I think is a direct consequence from the road traffic accident that occurred in 1995. This is a form of post traumatic stress disorder which has merged into depressive illness. The significant finding being that he continues to work and travel in the fire engine thereby not meeting the avoidance criteria of PTSD. For this reason I would call this a depressive reaction but more concerning are the episodes of dangerous behaviour with fire setting. It is because of this I think we need to take more urgent action ..."

12. Because of those episodes of dangerous behaviour Dr Wear referred the claimant to a consultant forensic psychiatrist. He was seen by Dr Laker, the specialist registrar in forensic psychiatry. His conclusion was:

"I agree with you that Garrett O'Reilly seems to have developed a chronic PTSD syndrome and what might be described as an occupational `neurosis' secondary to this, the chief features of which appeared to me to be more anxiety than depressive in nature."

He referred to the coincident beginning of abuse of alcohol, which made matters worse, and underlying considerable personality difficulties. Dr Laker considered it important that he be encouraged to get back to work as soon as possible:

"... as I think there is avoidance going on here and with further time off work his anxiety about returning will increase."

He then said that there was probably some ongoing PTSD work to be done, although he was aware that recent research had indicated that such treatment in chronic PTSD was of limited value.

13. By then, therefore, it was clear that the doctor responsible for his treatment and another colleague thought that the diagnosis was post traumatic stress disorder related to the accident.
14. It appears that the claimant stopped work in August 1997 and never effectively returned, although he went back briefly in April 1998. He remained under the care of Dr Wear, but by October 1998 he was certified as disabled by mental illness from injury in the course of his duties. He was medically retired in March 1999. He was referred by Dr Wear to Dr Schlich, I gather because the Fire Service were no longer funding his treatment. Dr Schlich arranged assessments with two clinical psychologists, Isabel Clarke, who saw him in late 1999, and Lusia Stopa, who saw him in 2000. Both agreed with the diagnosis of post traumatic stress disorder.
15. Thus all the treating doctors and psychologists had much the same view: there was a continuing serious condition disabling him from work and presenting problems in treatment. Dr Field, instructed by the defendant for the purpose of these proceedings, saw him once in 1999.
16. The judge concluded that the condition was both genuine and serious. He applied the diagnostic criteria from the American Diagnostic and Statistical Manual of Mental Disorders, the DSM-IV, published in 1994. The condition is, as it happens, also described in the other main diagnostic tool used by psychiatrists, which is the World Health Organisation's ICD-10, Classification of Mental and Behavioural Disorders, published in 1992. The judge had no difficulty in concluding that the crash was a sufficiently powerful event to qualify as traumatic for the purpose of criterion A in the American description. When dealing with the delayed onset, he said that no very convincing reason was advanced by Dr Field against possibly delayed onset, but in any event that begged the factual question of how much delay there really was here.
17. There was a problem in reconciling his return to work with criterion C, which reads as follows:

"Persistent avoidance of stimuli associated with the trauma, a numbing of general responsiveness (not present before the trauma) as indicated by three (or more) of the following ..."

There follow seven symptoms. The real evidence of avoidance arose in and after 1997. The defendant therefore argued that the precipitating event was more likely to be the dilemma which the claimant faced in early 1997 between telling the truth and supporting his colleague.

18. The judge referred to this as a serious point which he found troublesome. However, he concluded that the circumstance of going back to work was not such that he could not have been suffering from post traumatic stress disorder, that he was so suffering, and that it could be traced back to the July 1995 accident. He gave five reasons. First, the treating doctors persistently described him as having PTSD, though they all knew that he had returned to work. Secondly, the context of his return to work was his wish to pursue a career to which he was devoted: as the judge put it, "to face down the demon". Thirdly, his behaviour was not completely normal from 1996. He went on a lot of courses and took as much leave as he could, and the judge concluded that he was struggling to master his sometimes irrational fears. Fourthly, there was the evidence of his changed personality since the accident. Fifthly, the symptom in that list of seven to which this was relevant was "efforts to avoid activities, places or people that arouse recollections of the trauma". But the claimant did demonstrate at least three of the other symptoms in that list: (4) "markedly diminished interest or participation in significant activities"; (5) "feeling of detachment or estrangement from others"; (6) "restricted range of affect (e.g. unable to have loving feelings)". The judge also concluded that, in so far as his condition had deteriorated because of the 1997 dilemma, that was not a new cause. The post traumatic stress disorder made him more vulnerable to it.
19. In this application Mr Hubble has presented the arguments on behalf of the defendant with great skill and care. He has provided a very full psychiatric chronology, with cross-references to the three bundles of documents. I have read that chronology and followed up the cross-references and some of the other documents with care. But the arguments come down to saying that the judge was wrong to prefer one expert to another.
20. The argument relies on two points. The first is that the medical notes show a complete recovery from the effects of the accident in October or November 1995. The second is that a return to work as a fireman for such a long period thereafter is inconsistent with a finding of post traumatic stress disorder or indeed with a finding that the accident was a cause or materially contributed to his later psychological condition.
21. As far as the first argument is concerned, it seems to me that the judge was entitled to accept Mr Easton's later view. He was entitled to put what happened in 1995 into the context. This was a man who was dedicated to his career as a fireman and who was anxious to get back to work as soon as possible. That is a natural reaction and not in itself inconsistent because the avoidance behaviour in any event may take other forms; but that is by the way. It is interesting that the general practitioner's record puts the words "100% better" in inverted commas.
22. As far as the return to work is concerned, the judge's interpretation of that relied partly on the evidence of the claimant and his friends and partly on the evidence of those who had been responsible for the claimant's care and treatment. The striking feature of this case is the one referred to by the judge: that they have all taken the same view as to the nature and cause of the claimant's problems, even though they were fully aware of the return to work for the period in question. Mr Hubble's argument boils down to the simple one: that those people were all wrong and the judge should not have accepted their opinions. I find it quite impossible to think that there can be a real possibility of this court accepting that argument.
23. These cases are not easy. Psychiatric illness is not easy to identify, either in diagnosis or in aetiology. I have no doubt that Mr Hubble made the judge's job as difficult as it possibly could be by representing all these points to him with great force and care. But the judge was entitled to reach the conclusions that he did on the evidence before him.
24. For all those reasons this application, together with the application for a stay of execution, must be refused.
Order: applications for permission to appeal and a stay of execution dismissed.