England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HH Judge Medawar QC)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 15th February 2001

LORD JUSTICE BROOKE:

1. This is an appeal by the defendants Elizabeth Reed and Atlas Radio Cars against an order by Judge Medawar QC in the Central London County Court on 3rd December 1999 whereby he assessed the damages payable by them to the claimant Mark Frederick Cooper in the sum of £482,450. Mr Cooper had claimed damages for negligence against both defendants arising out of an incident in Essex Road, Collier Road, Romford, on 3rd May 1991. There had been an earlier trial in the same county court before Miss Assistant Recorder Jolles in which she had given judgment on 26th January 1996 for Mr Cooper in the sum of £90,834. Shortly before that trial the defendants had admitted liability. They had also admitted that the condition from which Mr Cooper claimed to have suffered was foreseeable as a matter of law. The defendants then obtained permission from this court to adduce further evidence in support of their appeal against that judgment, and on 24th February 1997 this court allowed their appeal and ordered a new assessment of damages.
2. The incident at the centre of this action occurred on 3rd May 1991. The first defendant was escorting a little deaf and dumb girl of four back from her school in Hornchurch to her home in Colliers Row in one of the second defendants' taxis. When the taxi came to a halt by the kerb outside the girl's home, she ran out into the road and into the path of Mr Cooper's car as he was driving at 20-25 mph along the road. Mr Cooper, who was at that time a 28-year old self-employed scaffolder, had no chance of avoiding her.
3. By the original particulars of claim, dated 6th August 1993, his particulars of injury were set out in these terms:

"The Plaintiff was greatly shocked by the incident and initially believed that the child was dead.

Thereafter he became very distressed and agitated and then was quiet, moody and withdrawn.

He became irritable, irrational and occasionally violent and consequently his wife moved out taking the children with her.

In September 1991 he consulted his general practitioner who prescribed the anti-depressant Prothiaden.

His concentration is adversely affected and he has intense pre-occupation with the accident. He remains anxious with obsessional symptoms. He has lost his motivation and decisiveness. He is constantly tired and cannot cope. He has a sense of hopelessness. His sleep is impaired and he suffers from nightmares.

He has been diagnosed as suffering from both a post-traumatic stress disorder and a severe depression. Due to his condition following the said accident the Plaintiff was unable properly to conduct his scaffolding business which ran down and ceased to function.

The Plaintiff requires cognitive behaviour therapy.

Please see the report dated 12th May 1993 by Dr William Mitchell MA, PhD, Dip Psych."

4. Dr Mitchell is a clinical psychologist, and in this psychological assessment report he described the catastrophic effect the incident had had on Mr Cooper's life. There was no known psychiatric history in his family and he went straight into scaffolding after leaving school. He told Dr Mitchell that before the incident in May 1991 he was doing well, running his own scaffolding business, which employed 18 people, and diversifying into the supply of scaffolding in addition to erecting it. He had been married for two years and his home life was stable. He had no history of suffering depressions, anxiety states or sleep problems before the incident. He told Dr Mitchell he was hard-working and highly motivated. He enjoyed active pursuits, including football training and running.
5. The incident had occurred at about 4pm, when he was driving along Essex Road to the local shops. He saw a car ahead of him, with two people in it. It pulled over to the right to park, and as he passed it he hit a child who ran out in front of him. He did not see the child before the impact, but he remembers the impact clearly and remembers seeing the child being thrown into the air and hitting the bonnet of his car. He stopped and saw the child lying on the road, and assumed that she was dead. The child's father rushed out and picked up the child, who started to cry. It was only later that Mr Cooper discovered that the child was deaf and dumb.
6. Immediately after the accident he felt shocked, physically sick and angry that the accident had happened. He had great difficulty sleeping, and when he did sleep he was troubled by disturbed dreams about the accident. He also dreamt about accidents involving his own children. Over the few weeks after the accident he became increasingly anxious about his own children's safety. He constantly asked his wife for reassurance that they were safe. He became anxious about leaving the house if his children were at home in case a similar accident should happen to them. He became very nervous as a passenger in cars himself. He had great difficulty keeping thoughts abut the accident out of his mind. At home he was irritable and angry. He experienced marked guilt feelings and kept going over the events of the accident in his mind. He felt a great need to talk about the accident to his wife and friends. He experienced frequent intrusive recollections of the accident in the few weeks after it occurred.
7. The accident so overwhelmed him that he gave up work a few weeks after it happened. Dr Mitchell paints a picture of how he lost his motivation, became argumentative and difficult with his clients, and in general became thoroughly unreliable. He also became increasingly depressed. He did not at that time realise that his behaviour was abnormal, and severe strains developed within the marriage. His children became frightened of him, and eventually his wife could no longer cope with his behaviour and she left home, taking the children with her. In August 1991 his general practitioner prescribed an anti-depressant, which helped him to calm down. His sleep improved, and he became less argumentative and angry, and his wife then returned to live with him.
8. Dr Mitchell reported that two years after the accident Mr Cooper was still experiencing marked psychological symptoms which he described under the headings "Raised Anxiety", Sleep Disturbance", "Preoccupations about the Accident", "Depression" and "Impact on the Marriage". He concluded that since the accident Mr Cooper had developed two psychiatric disorders: a post-traumatic stress disorder ("PTSD") with marked symptoms of anxiety, preoccupations about accidents and obsessional symptoms, and a severe depression. Dr Mitchell described these two disorders, and their effect on Mr Cooper, in these terms:

"A post-traumatic stress disorder is a condition which can occur to an individual who has been involved in some experience which is markedly distressing and is outside the range of usual human experience. The characteristic symptoms involve re-experiencing the traumatic event, avoidance of stimuli associated with the event or numbing of general responsiveness or increased arousal. Typical symptoms include recurrent, intrusive, distressing recollections of the event, marked symptoms of anxiety associated with reminders of the event, sleep disturbance, irritability, difficulties concentrating, hypervigilance, a sense of a foreshortened future, with a duration of at least one month. Mr Cooper has all of these symptoms and they do not appear to have reduced in severity over the past six months.

His symptoms of depression include marked irritability, thoughts about suicide, feelings of hopelessness and loss of motivation and interest in day-to-day activities."

9. Dr Mitchell was satisfied that there was a direct causal connection between these symptoms and the May 1991 accident. He said that Mr Cooper was still showing marked symptoms of depression, despite his anti-depressant medication, and his behaviour at home was still unreasonable and difficult. Dr Mitchell feared that if his wife was to find it all too much to bear and was to leave again, Mr Cooper's depression would in all probability become even more severe. Dr Mitchell recommended treatment by cognitive behaviour therapy in an outpatient setting over an 8-9 month period. He said that this treatment should be reasonably intensive, and that it should be followed by six months of follow-up treatment over a six month period. The cost would be likely to be £3,000 to £3,500.
10. Dr Mitchell saw Mr Cooper again on 25th October 1995, and he wrote his second report a week later, shortly before the first trial. He said that Mr Cooper had now had some sessions of psychological therapy at a local hospital and was still seeing the psychologist every two months, but in spite of this treatment there had been relatively little change in his psychological condition. He described the continuing symptoms under the same five headings. Mr Cooper had told him that he did not think a day had gone past when he had not thought about the accident, and these thoughts made him feel angry and annoyed about the effects the accident had had on his life.
11. Serious difficulties were now taking place within his marriage. Although he was still living with his wife, their relationship was now very strained, and he told Dr Mitchell he was surprised they were still together. Because he was still angry and irritable, he had violent rows with his wife two or three times a month. During the previous month the police had been called to his house because he was being so aggressive to his wife. By now there was a great deal of strain in his marriage and little intimacy. He had lost his interest in sex.
12. Dr Mitchell considered that there had been very little change in Mr Cooper's psychological condition since May 1993. He said he required further treatment over a year or so on an outpatient basis. This should be on a more frequent basis than he was receiving at present. He was not fit to return to work as a scaffolder, and without active psychological treatment, which would cost £2000-£2500 if it was not available on the NHS, his prognosis was poor.
13. At the first trial in November 1995 the defendants disputed the extent to which Mr Cooper had suffered, if at all, from PTSD. They also disputed that he was unfit for work at the time of the trial, or that he had been unfit to work for the whole of the time since the accident.
14. The assistant recorder also mentioned a major issue in connection with Mr Cooper's claim for special damages. He had left his job and become self-employed in July 1989, and after a few months he had started to employ other scaffolders. The defendants were contending that this business had ceased prior to the accident, while Mr Cooper maintained it was a thriving small business on the brink of expansion into the scaffolding supply business. The assistant recorder granted Mr Cooper permission to include a claim for loss of future earnings for a period of six months after the trial and a claim for the cost of future private therapy.
15. The defendants' expert medical witness at this time was Dr Anthony Fry, a consultant psychiatrist, who had first examined Mr Cooper in November 1994, more than three and a half years after the accident. Both he and Dr Mitchell had had extensive clinical experience, in their respective disciplines, of dealing with patients who had survived major disasters. In particular, they had both had considerable experience of diagnosing and treating patients with PTSD.
16. They both agreed that Mr Cooper's experience of the accident on 3rd May 1991 was outside the range of normal human experience and was bound to have been very distressing. They also agreed that although there was no "anticipatory period" before the accident (which typically increases the distress and shock suffered by the victim of an accident), in this case Mr Cooper's period of "fearing the worst", which had lasted from the moment of the accident until later that evening (when he heard from the child's father that she only had minor injuries), was itself an anticipatory period which would have a distressing effect. Dr Fry said he would have expected such an experience to produce a nervous shock, which might have lasted for between six and nine months.
17. When Dr Fry had examined Mr Cooper in November 1994 he had the benefit of access to both his GP's notes and the medical records of the psychiatrist who had been treating him. Dr Fry told the court that the core symptoms necessary for the diagnosis of PTSD, and also some symptoms which were specific to PTSD, were present in Mr Cooper at that time. Dr Fry relied on the list of PTSD symptoms contained in the latest edition of the Diagnostical and Statistical Manual of Mental Disorders ("DSM IV") published by the American Psychiatric Association.
18. The assistant recorder said in her judgment that both experts agreed that the diagnosis of this type of illness was difficult. They tended to rely on their own clinical experience to assess the genuineness of the symptoms and the degree of their severity, and they typically took account of any medical records and what they might be told in interview by a third party, usually a spouse. They told her that one of the core symptoms specific to PTSD was high arousal, which in some subjects manifested itself as anger.
19. In addition to hearing Mr Cooper give evidence, the assistant recorder also heard the evidence of his wife, mother and brother. She believed them all. She found that there was no sign of the symptoms of PTSD before the accident and that, on the balance of probabilities, Mr Cooper had suffered from PTSD, whose onset occurred very soon after the accident. She was satisfied that it was caused by the accident. She also found that he was suffering from PTSD to a marked degree when he was seen by Dr Mitchell in May 1993, but that the symptoms had receded to an extent by the time Dr Fry saw him in November 1994.
20. Both experts witnesses had agreed that Mr Cooper was not yet well enough to go back to work as a scaffolder. They agreed he was physically fit, and that he was capable of manual work, including building work, but that he should not be placed in situations which might lead to his being provoked into outburst of anger. He would still need treatment by medication or counselling or both before he was emotionally fit enough to go back into scaffolding, or to undertake more stressful work, such as building up a business in the scaffolding market again. It had been put to him in cross-examination that he had in fact been working as a doorman. He denied that he had, and both experts agreed that it would have been highly inappropriate work for him in his condition, given his need to be protected from situations which might cause him stress, or where others might provoke a loss of temper.
21. The assistant recorder found that Mr Cooper continued, at the time of trial, to suffer from PTSD, but to a lesser extent than previously. She found, on the balance of probabilities, that he had not worked since May 1991 despite the challenges the defendants made to his evidence on this issue.
22. Given Dr Mitchell's prognosis that with treatment Mr Cooper's life would gradually become more normal, and that he should be able to get back to work in about six months, the assistant recorder awarded him £10,250 by way of general damages. On the evidence before her she concluded that for his loss of earnings claim it was appropriate to take the pay of an employed scaffolder as the measure. She awarded him a sum for total loss of earnings up to the date of trial on this basis, together with six months' future loss of earnings on the same basis. She also awarded him £2,000 for the cost of future private treatment.
23. The defendants had made a frontal attack on Mr Cooper's credibility at the trial in November 1995. He said he had been going to the gym at the Epping Forest Country Club, of which he was a member, about three times a week, and the defendants were contending that he had also worked as a doorman at that club. They had relied in this regard on the evidence of Mr Deacon, a solicitor who had appeared for the Crown on 1st May 1995 to resist an application Mr Cooper had made for a variation of his conditions of bail, following his being charged with an affray at the club.
24. Mr Deacon said that Mr Cooper's counsel had told the magistrates that he had been arrested two weeks after the incident at the club. He had continued to work there part-time, and if his boss had thought he was a trouble-maker he would not want to keep him on. Mr Deacon understood that the basis of the application for a variation of bail conditions, as he understood it, to enable Mr Cooper to work. Mr Cooper denied this. This had not been the purpose of his application and Mr Deacon had misinterpreted what had been said. He had not been working as a doorman, and this was confirmed in evidence by his wife who told the court that she would know if he had been.
25. On the hearing of their appeal in February 1997 the defendants obtained leave to adduce new evidence in the form of an account of an interview with the defendant on 26th February 1995 in connection with the charge of affray for which he was eventually tried at the Chelmsford Crown Court in March 1996. In brief, Mr Cooper was recorded as saying that he was one of the doormen at the club and that he had had to deal with an incident there. He had worked at the club for the previous eight months, as security, normally on Fridays and Saturdays. On the night in question he had started at 9.30pm and finished at 2.30am. There was also put in evidence a transcript of his evidence at the criminal trial in which he had referred to his position at the time of the incident as a doorman.
26. This court held that this evidence was clearly of essential importance to the assessment of Mr Cooper's credibility, both as to his physical and mental condition and as to the calculation of any damages claim he might have. The order of the assistant recorder was set aside, and a new trial was ordered.
27. The second trial took place before Judge Medawar nearly three years later. By now the defendants had dispensed with the services of Dr Fry and had instructed Dr Waguih Roshdy Guirguis, who produced his first report in April 1998, nearly seven years after the incident in Essex Road. This was followed by supplemental reports in May and October 1999. On Dr Guirguis's advice, the defendants now alleged that Mr Cooper was making his claim maliciously and fraudulently, either knowing that it was false or being reckless as to whether it was true or false.
28. The defendants also instructed a forensic accountant, Mr Jarvis. In his review of Mr Cooper's business before the incident Mr Jarvis concluded that it had either ceased completely or there had been a hiatus.
29. The judge was satisfied that there was a hiatus. By the time of the second trial Mr and Mrs Cooper had divorced, but Mrs Cooper again gave evidence, and the judge accepted what she and Mr Cooper told him. They had married in December 1988 after a period of living together, and their two children were born in June 1988 and July 1989. By its nature his scaffolding business was seasonal. From the 1990 accounts it could be seen to be doing well. The judge found that Mr Cooper took time off work in 1991 during the last week of March and the month of April. His wife was pregnant again, and he devoted his time to the family and to redecorating the house. No work was invoiced for the business after 21st March 1991, and his accountant treated 22nd March ex post facto as the date of the cessation of his business for tax purposes.
30. The judge found, however, that he had not abandoned his business and was intending to move on to the supply of scaffolding (rather than just labour) if he could. He relied on documentary evidence as well as the evidence of Mr and Mrs Cooper for this finding.
31. The judge set out briefly the later history of the marriage. Mrs Cooper had obtained her decree absolute, on the grounds of unreasonable behaviour, in June 1998. The judge accepted her evidence that her husband had never even threatened her with violence before the May 1991 incident and that she had found it totally unacceptable when it occurred.
32. By the end of the trial the defendants had abandoned their lately advanced assertions of fraud and were now suggesting that something coincidentally, and quite unconnected with the incident, had caused Mr Cooper to become violent, had brought about the collapse of his business, and had led to his becoming completely dysfunctional. The reason for this volte face was that after listening to Mr Cooper's evidence in court, Dr Guirguis was left in no doubt as to his genuineness. Although there might be a degree of exaggeration, he did not think that these symptoms could be made up. He had written in his first report that credibility was of crucial importance in a case like this.
33. At the trial he said that he did not think there was any pre-existing defect in Mr Cooper's make-up. He felt that drug abuse would be his preferred explanation for his bizarre behaviour.
34. Counsel for the defendants then argued that because Mr Cooper was interested in body-building and worked out in a gym, it was legitimate to infer that steroids had been used and were available in such a milieu. If he did not take steroids, then counsel theorised about the possibility of amphetamine sulphate. This idea stemmed from evidence that this drug had once been found in his former wife's home. She said her husband had confiscated it in about 1989 while he was working as a bouncer at the Epping Forest Club. The judge said that there was no evidence that Mr Cooper or his former wife had ever taken steroids or amphetamine sulphate. A blood test might have resolved this point, but none had ever been sought. The judge was equally dismissive of Dr Guirguis's suggestion that Mrs Cooper might have abused drugs. Indeed, he said that much of what that doctor had to say was open to question.
35. The judge went on to say that Dr Guirguis might have been influenced in his original opinion by allegations that Mr Cooper might have been working as a bouncer since the accident. The judge said that on investigation he found this unlikely to be correct. Although Mr Cooper had falsely told the police he had been employed as a doorman at the Epping Forest Club, the judge said it was understandable that he should say this, since doormen were present during the incident and it might explain his presence there. He added that Mr Cooper might have put forward a false defence at his trial, but there was no proof that he did so. The fact of his conviction proved nothing as to whether he was or was not employed at the time.
36. In relation to Mr Deacon's evidence, the judge said that the basis of the application relating to bail conditions may well have been so that Mr Cooper would be able to go to the club to "work out", not "to work". He said that this would be completely understandable, having regard to the importance of "working out" to him and the significance of the club in his life after the accident, the collapse of his marriage and his inability to continue working, whether in his business or as a scaffolder or at all.
37. The judge accepted Dr Mitchell's evidence that Mr Cooper was suffering from PTSD as a result of the accident. He said that no convincing hypothesis, based on evidence, had been advanced to displace the accident being responsible for his chronic dysfunctional condition at the time of the second trial. There was an issue between Dr Mitchell and Dr Guirguis as to whether the accepted diagnostic criteria for PTSD had indeed been made out, as Dr Mitchell asserted. Both doctors were invited to consider the criteria set out in a box on pages 439-440 of DSM IV, which start:

"A The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others

(2) the person's response involved intense fear, helplessness or horror.

38. Dr Guirguis had argued that the anger Mr Cooper displayed was inconsistent with fear, helplessness or horror. The judge said that anger was not inconsistent with horror. It was a horrifying accident and he had no doubt that part of Mr Cooper's response was one of horror. He reminded himself that Dr Mitchell had written in his first, May 1993, report that "immediately after the accident Mr Cooper felt shocked, physically sick and angry that the accident had happened".
39. The judge added that conditions of this kind might be multifactorial in origin, but he was satisfied that whether or not Mr Cooper had had a pre-existing vulnerability to become dysfunctional, the accident was the most likely trigger which set off a chain of events leading to his present condition and that there was no likelihood of any sustained improvement. After referring to certain features of the way in which Mr Cooper had given evidence, the judge asked himself whether the accident, on the balance of probabilities, had caused or materially contributed to Mr Cooper's condition which had prevailed since the accident. He then said: "The answer to that question is plainly 'yes'".
40. The judge found that Mr Cooper had not worked since the accident and that he had not derived any financial benefit from attending the Epping Forest Club or anywhere else. He said that damages were to be assessed on the basis that he would not be able to work in future. The basis for the calculation of financial loss, both past and future, should be derived from the likely earnings of an employed scaffolder up to the age of 60. This basis of assessment was not in dispute.
41. The judge awarded £31,000 as general damages for severe psychiatric damage. He invited the parties to agree the total amount of the judgment in accordance with the guidance he gave them on pages 11-12 of his judgment, which resulted in a total award of £482,450, over five times the amount awarded by the assistant recorder, made up as follows:

"General Damages £31,000

Interest £5,812.50

Past loss of earnings £122,996

Interest £44,697

Future loss of earnings £277,773

Policy excess (including interest) £172.69"

42. Mr Cooper was in prison between 10th April 1996 and 6th January 1997. The judge held that no deduction should be made for the period of his imprisonment, which resulted from conduct brought on by his psychiatric condition: to treat it otherwise would fly in the face of the evidence, taken as a whole. Without other convictions for other offences at other times, it was more probable than not that this conduct would not have occurred but for his condition.
43. Mr Simon Maskrey QC was instructed to appear for the defendants shortly before the hearing of the appeal and we permitted a late amendment to the Notice of Appeal to enable him to argue that the decision of this court in Clunis v Camden and Islington Health Authority [1998] QB 978 ought to have precluded the judge from awarding the claimant loss of earnings for the nine month period when he was in prison.
44. The defendants sought to put in fresh evidence at the hearing of this second appeal. The main thrust of the appeal was to the effect that the judge ought not to have believed Mr Cooper and his former wife and that he ought not to have found that Mr Cooper was suffering from PTSD as a consequence of the May 1991 incident. Mr Maskrey was also critical of the judge for setting out his conclusions so boldly without giving adequate reasons.
45. Unless new evidence tips the scales, Mr Maskrey faced formidable obstacles when he sought to persuade us to reverse the findings of fact and the assessment of the expert witnesses which were made by this experienced judge. I repeat what I said in Robertson v Nottingham Health Authority [1997] 8 Med LR 1 at p 7:

"Although this is an appeal by way of rehearing we cannot re-try the case on the transcripts (Bull v Devon AHA [1993] 4 Med LR 117 per Mustill LJ at p 142). The judge saw and heard the witnesses, including the expert witnesses, and his view as to the weight he should give to their evidence cannot and must not be overlooked or devalued (SS Honstestroon v SS Sagaporack [1927] AC 37 per Lord Sumner at p 47; Eckersley v Binnie (1988) 18 Con LR per Bingham LJ at p 77; and in relation to expert witnesses, Wilsher v Essex AHA [1988] AC 1074 per Lord Bridge at p 1091G)."

46. Mr Maskrey faced the further difficulty that two judges had now believed Mr Cooper and his family's broad description of the matter and had accepted Dr Mitchell as a reliable witness, that the defendants' first consultant adviser, Dr Fry, had agreed with the diagnosis of PTSD, and that when they dispensed with his services after the first trial and instructed Dr Guirguis, that expert was at the disadvantage that he had never seen or heard of Mr Cooper until more than seven years had elapsed since the incident in Essex Road, and the judge was clearly unimpressed by him as a witness.
47. Mr Maskrey invited us to look carefully at two periods in the history between 1990 and 1999 for which documentary evidence survives and to conclude that the judge so completely ignored the strong evidence that Mr Cooper must have been lying as to discredit his conclusion that, broadly speaking, he was a witness of truth. The first of these periods was the period in respect of which Mr Jarvis had done detective work on the accounts. The other was the period of the criminal proceedings in relation to the charge of affray at the country club which culminated in Mr Cooper's conviction at the Chelmsford Crown Court and his incarceration for a term of 18 months imprisonment of which he served nine.
48. So far as the first period is concerned, Mr Jarvis conceded in cross-examination that after a period in the summer of 1990 when Mr Cooper's scaffolding business had flourished, there was a hiatus from 22nd March 1991, and he could not as an accountant say what was happening in practice on the ground. Nor could he have told how the business would have performed, but for the accident, in the summer of 1991 from looking at accounting documentation.
49. The judge therefore had to look to other evidence for his conclusion as to what was happening at that time. Mr Davies QC reminded us that Mr Cooper was in the witness-box for almost a full day and that his former wife was in the witness-box for some time on the second day, and the judge believed what they told him. Mrs Cooper, for instance, remembered that when her husband took time off work in March-April 1991 she was quite ill with her third pregnancy and she had the two babies to look after. Her husband was therefore helping at her home, and decorating the house as well. I have examined carefully all the points which the appellants have urged on us in their attempt to reconstruct this period from the documents, but it appears to me that there is nothing in this material which should lead us to the conclusion that Mr Cooper was such a liar that the judge must have been wrong when he was willing to believe the broad history Mr Cooper and his wife had given him. Mrs Cooper, incidentally, had no reason to be fond of her former husband at the time of the second trial. She was by now very frightened of him and had obtained a very strict restraining order against him to ensure she was protected from further harm.
50. When I turn to the period of the criminal proceedings, the defence produced three documents which threw light on what Mr Cooper had been saying about his association with the club at different times. In an interview he told the police he was employed on occasional nights at the club as a doorman for eight months prior to 10th March 1995. Mr Deacon, the solicitor at the bail hearing, had made a note at the hearing that between 26th February and 27th April [1995] "he continued to work at EFCC". He also made a note that he had worked there for eight years and met his wife there. A Pre-Sentence Report dated 26th March 1996, on the other hand, showed that Mr Cooper told the probation officer that he was a regular visitor to the club, having worked there for ten years as a doorman. He said that on occasion he used to help out the club staff, and on the night of the offences he went to the assistance of a doorman who was involved in an incident with a customer.
51. Mr Deacon gave evidence again at the second trial. He said he had not made a verbatim note. His note just gave the gist of what was said, and he had no independent recollection of the hearing. He accepted that it was quite possible that Mr Cooper might have said that he wanted to go to the club in order to work out. His grounds for objection were that Mr Cooper should not go back to where the incident had happened, where he might come across prosecution witnesses. His objection would have been the same whether Mr Cooper had been working there or not.
52. Mr Cooper, for his part, accepted that he had lied to the police when he told them that he had been employed occasionally as a doorman at the club for eight months prior to the incident. He had been persuaded to tell this lie by the other doormen and he regretted making this mistake. His reason for lying was that if he had said he was simply out for the night, this would have isolated him and made it look as if he had been causing the problem. It made it appear more justifiable for him to chase people in the car if he was employed as a doorman. He said he had been going to the gym at the club two or three times a week for many, many years to do weight training.
53. The evidence that he was not employed at the club after May 1991 received some support from Mr Peter Killigrew, who had grown up with Mr Cooper but had only seen him occasionally since the late 1980s. He told the judge that Mr Cooper did not work at the club in the 1990s. More significantly, Mr Pomfret, whose company had bought the club in 1989-90, confirmed this evidence. He had met Mr Cooper soon after he took the club over, and he was there "an awful lot". He had found Mr Cooper to be paranoid about everything, "putting his heart out really". He used to come to his office quite a number of times. He did not employ him. It was possible he asked him to keep an eye on some of the doormen, although he did not recall this. Mr Cooper was a friend of his personal secretary, who was Peter Killigrew's sister-in-law.
54. Although the judge did not mention Mr Pomfret's name in his judgment, it is quite clear from the way he approached this part of the case in his judgment (transcript, page 6, line 25 to page 7, line 23 and page 10, lines 16 to 18), that he accepted Mr Pomfret's evidence, and that he also accepted that the basis of the bail application may well have been that Mr Cooper would be able to go to the club to "work out". It appears to me, from comments the judge made during the hearing, that he was disposed to try and understand the true motive for the bail application, as opposed to the actual words used, which may have been untrue (see transcript for Day 1 ("T1"), page 20, lines 40-1; Day 3 ("T3"), page 3, Lines 47-50; and the submission of Mr Jay QC, which the judge appears to have accepted, at T3, page 36, lines 17-53).
55. The new evidence which the defendants seek to adduce is the transcript of the judgments of Phillips LJ in the Criminal Division of the Court of Appeal on 29th July 1996. Mr Cooper had been convicted of affray and spraying CS gas with intent and been given concurrent terms of 18 and 12 months imprisonment. The single judge had referred to the full court his applications for leave to appeal against both conviction and sentence and an application to admit fresh evidence. There had been three defendants at the trial. They were all convicted, and one of the others was also seeking leave to appeal.
56. There are two matters on which the defendants seek to rely. The first is that Phillips LJ started his judgment by stating facts which were not controversial, one of which was that "the three defendants were doormen at Epping Forest Country Club". The second was that Mr Cooper was seeking to place before the Court of Appeal as new evidence an admission made by the third defendant (a 22-year old man called Eastman, who was convicted of affray and sentenced to 180 hours community service) to the effect that he had been the one who had actually sprayed the CS gas.
57. There were three different witnesses who had signed formal witness statements to this effect. The first was Mr Cooper's wife, who said that after the court had passed sentence on her husband, she was being comforted in the court foyer by a number of other people, including a Mr Hemstock, when Mr Eastman approached their group and took her to one side. He told her that he was going to tell the truth to the court, that it was he who had actually sprayed the gas. He then took Mr Hemstock aside for a conversation, which she did not hear, and later approached her again and told her that after speaking to her solicitors he had decided not to own up because he would be "done for perjury" and get six years for it.
58. Mr Hemstock was the second proposed witness. He had been unable to attend the Court of Appeal because the appeal was listed for hearing at very short notice at a time when he was abroad. He had previously only known Mr Eastman by sight: he had never spoken to him. He had taken Mr Hemstock to one side. He said Mr Eastman obviously knew that he, Mr Hemstock knew that Mr Eastman was the person responsible for spraying the gas. Mr Eastman told him that it was no good his owning up to it now, because his solicitor had told him he would get six months for perjury and the other two defendants would only have to do nine months.
59. Mr Pomfret was the third proposed witness. It is not clear from the judgment whether he had been summoned to attend the Court of Appeal. In the event he did not attend because of conflicting business commitments. In his statement he said that Mr Cooper had told him he had been wrongly convicted of spraying CS gas, and he had wanted to hear what Mr Eastman had to say about the incident. He therefore saw Mr Eastman in his office about a week after the conclusion of the trial and asked him directly whether he had sprayed the gas and he said "yes". He had panicked and sprayed the gas. Mr Pomfret also said that Mr Eastman had previously given a general account of events which was similar to that given by Mr Cooper.
60. Phillips LJ said that the police had interviewed Mr Eastman in relation to these three statements. In interview he had denied making the statements, and he also denied having been responsible for spraying CS gas. He had declined, on his solicitor's advice, to sign a witness statement to this effect.
61. The court would not have refused to admit the statements on the ground that they were not admissible in a criminal trial if admissibility had been the only issue, because the law relating to exceptions to the hearsay rule was still in a state of development. It considered, however, that if Mr Eastman had been responsible for spraying the CS gas, the other defendants, and in particular Mr Cooper, would have been able to adduce evidence to that effect at the trial, and he did not do so.
62. More significantly, the court reviewed the evidence for the prosecution and concluded that Mr Eastman's evidence was not capable of belief. Two men had sprayed CS gas into the car occupied by the prosecution witnesses, one on either side. Four of them identified Mr Cooper as the man on the driver's side, and four of them identified the other would-be appellant, Mr Moan, as the man on the passenger's side. Their evidence left no room for Mr Eastman in the picture, and even if he had confessed to spraying CS gas this did not advance the case of Mr Cooper to the extent that his conviction would be unsafe, having regard to the positive identification made of him as being the man who sprayed CS gas through the door on the driver's side.
63. Mr Maskrey maintains that this evidence could not have been obtained with reasonable diligence before the trial. It was material because (i) either what was said about Mr Cooper working as a doorman was true, in which case the judge's finding to the contrary would be in issue, or it was false, and this willingness to mislead the Court of Appeal would go to his general credibility; (ii) it would have an impact on the judge's willingness to accept the evidence of Mrs Cooper, given that she was prepared to concoct a false story so as to assist Mr Cooper in the Court of Appeal.
64. Although this court is now given a general discretion whether or not to receive fresh evidence (CPR Rule 52.11(2)), the principles reflected in Ladd v Marshall [1954] 1 WLR 1489 remain relevant as matters which the court must consider in the exercise of this discretion (Hertfordshire Investments Ltd v Bubb, The Times, 31st August 2000).
65. In my judgment, the court should decline to admit this new evidence. Despite the protestations of the defendant's solicitor, it could have been obtained with reasonable diligence for use at the second trial in the particular circumstance of this case. The earlier judgment of this court had spotlighted the possible relevance of any relevant matters said by Mr Cooper during the course of the criminal proceedings against him, and although the defendant's solicitor protests that his firm had not been told that there had been an appeal against conviction and sentence, they had only to ask (and, if necessary, make their own inquiries at the offices of the Criminal Division of the Court of Appeal). Indeed, they had in their possession a pre-sentence report which said in terms that Mr Cooper had maintained his innocence throughout both interviews with the probation officer and "stated that he planned to appeal against his conviction once sentenced".
66. I am also of the opinion that if this evidence had been given, it would probably not have an important influence on the result of the case. Although Judge Medawar said that there was no proof that Mr Cooper had "put forward a false defence at his trial", he might have done so, and it now appears from the Court of Appeal judgment, as well as the transcript of the Crown Court proceedings, that the criminal trial proceeded on the basis that all three defendants were doormen at the club. This in itself throws very little further light on the question whether Mr Cooper was in fact employed as a doorman. As the judge said, it was understandable that he should have said he was so employed, since that might explain his presence at the incident.
67. Nor do I consider that if this evidence had been available at the second trial, it would have had much influence on the view the judge formed of Mrs Cooper as a witness. She told the judge that she could not remember what was said on matters of detail at the trial at the Chelmsford Crown Court. She would no doubt tell the judge that Mr Eastman did tell her what she recorded in her witness statement before the Court of Appeal. The fact that it was probably untrue would not have affected the truth of her evidence that she had been told this by one of her husband's co-defendants who had just been released from the dock at the same time as his co-defendants had been sentenced to 18 months' imprisonment.
68. The difficulty the defendants face is that even if a court was disposed to find that Mr Cooper told lies in an attempt to escape conviction, or in an attempt to vary his bail conditions, or even that his wife was willing to tell lies to help her husband in the plight in which he found himself in 1995-6, this does not help them very much to escape from the dilemma that there was a large, consistent mass of medical evidence, gathered together long before Dr Guirguis appeared on the scene, to the effect that the May 1991 incident was the trigger to the principal psychiatric disorder from which Mr Cooper suffered, and that there was no evidence worthy of the name to support Dr Guirguis's theory that there might have been some other cause. The defendants seem unwilling to face up to the fact that if, as two judges and two expert witnesses (Dr Mitchell and Dr Fry) have found, it was the May 1991 incident that triggered off the PTSD, then it was their wrongdoing which reduced Mr Cooper to a state in which he was likely to flare up angrily at slight provocation. As I have said, at the first trial the assistant recorder said that both these experts agreed that he needed to be protected from situations which might cause him stress, or where others might provoke a loss of temper.
69. I turn therefore to the last main issue on the appeal, which was that the judge should not have found that the diagnostic criteria for PTSD were satisfied, because the evidence showed that Mr Cooper's response to the incident was one of anger, not horror.
70. This matter can be dealt with quite shortly. The judge saw and heard Dr Mitchell who had massive experience of PTSD victims over the previous 15 years (T2/8). He described vividly Mr Cooper's behaviour on the various occasions when he had assessed him and had no doubt that he was suffering from PTSD. When it was suggested to him that the stressing event was of short duration and minor, he said (T2/54):

"No. I think that if someone is driving home, down the road, one Saturday afternoon, and suddenly without warning they hit a child who is thrown up in the air, hits the bonnet of the car and falls to the ground, and the belief is that you have killed that child, that is a very shocking and very stressing event which is well outside normal experience."

Earlier (T2/19) he had said that Mr Cooper's response to the incident had been one of horror.

71. He added that a great many disorders of this type which have involved a road traffic accident were of very short duration.
72. Although Dr Guirguis did not agree with him, the judge was entitled to accept Dr Mitchell's evidence. He was entitled to find that after such a horrifying accident part of Mr Cooper's response was one of horror, and that anger was not inconsistent with horror.
73. I turn now to the side issue, introduced by Mr Maskrey, with our permission, by an amendment of which he had given very little notice prior to the hearing of the appeal, that the judge should not have awarded Mr Cooper damages for loss of earnings in relation to the nine month period for which he was in prison. Although Mr Davies did not formally concede the point, he did not resist it with any degree of determination. This was understandable. Although the judge's logic seems to me to have been impeccable, we are bound by the decision of this court in Clunis v Camden and Islington Health Authority [1998] QB 978 to disallow this part of the award. Although the defendants' wrongdoing weakened Mr Cooper's resistance when provoked (and on the night of the affray his trousers were sliced through and his leg was cut by members of the party who were subsequently attacked in their car), the law as it now stands gives him no excuse for the criminal acts which he then committed or the sentence of imprisonment he served as a consequence of those acts. Nine months' loss of earnings at the relevant rate must therefore be deducted from his damages. I see no reason, either in justice or in logic, why the award should be reduced any further on the basis that Mr Cooper's parlous condition, caused by the defendants' wrongdoing, gives rise to a risk, significant or otherwise, that he may re-offend or spend further time in prison.
74. I have not referred to all the minutiae of the detailed points put to us by the defendants in an attempt to persuade us to retry this case on the transcripts even though we did not see the witnesses. Before concluding this judgment, I have re-read carefully the defendants' very full skeleton arguments, and my note of Mr Maskrey's oral argument and I can see nothing which persuades me that we should vary the judge's order, except in relation to Mr Cooper's lost earnings while in prison.
75. A number of points were made, incidentally, in relation to the DSM IV criteria, which were not put to Dr Mitchell when he was in the witness-box. Given that the judge was told of a convincing trigger event for Mr Cooper's psychiatric disorder, I see no reason why he should speculate, on the basis of very little supporting evidence, about the possibility that there was some other cause of his disintegration. It was the judge's duty to decide the case on the balance of probabilities, and this is what he did.
76. Except to the small extent mentioned in paragraph 73 above, I would dismiss this appeal.

LORD JUSTICE KEENE: I agree.

LORD JUSTICE WARD: I also agree.

Order: appeal allowed only to small extent set out in paragraph 73; claimant to have his costs of the appeal; counsel to lodge an agreed note of judgment figure plus interest. (Order does not form part of approved Judgment)