England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Garland)

		Royal Courts of Justice Strand London WC2 Tuesday, 6th March 2001

1. LORD JUSTICE HENRY: I will ask Lord Justice Buxton to give the first judgment.
2. LORD JUSTICE BUXTON: This is an appeal from a decision of Mr Justice Garland in a personal injuries matter decided by that judge on 12th April 2000. The appeal raises two different categories of grounds of appeal: first, a challenge to the learned judge's findings of fact as to the causation of the serious disability from which Mr Stacey, the claimant, now suffers; secondly, and in a different category, a challenge to certain aspects of the learned judge's conclusions on issues of quantum. I will deal first with the issue of causation, which is the most important point in the appeal, and then turn later in the judgment to issues of quantum.
3. On the appeal on the issue of causation, it is right to put on record that Mr Ticciati, who appeared at trial and appears before us, in the course of his detailed and helpful submissions to us paid tribute (and, in my respectful judgement, justified tribute) to the care and detail with which Mr Justice Garland had approached this case; and Mr Ticciati very fairly recognised the burden that rested upon him in challenging the learned judge's findings of fact.
4. The basic facts of the accident that Mr Stacey suffered in February 1990, when he was a passenger in a car driven by a fellow employee of the defendant company, are set out at the beginning of the learned judge's judgment in terms that I cannot improve on. I therefore quote directly from that judgment:

"The Claimant's injuries are set out in paragraph 3 of the Statement of Claim as follows:-

`(i)Injury to the head with loss of consciousness and post- traumatic amnesia for up to one hour;

(ii)Bruising to the left side of the head;

(iii)Multiple lacerations and bruises to the left side of his body, particularly at the shoulder;

(iv)Neck injury.

There were no bony injuries, but he experienced central chest pain whilst at the hospital. Initially treatment consisted of the provision of a sling and analgesic medication. He was not detained overnight. The Plaintiff was away from work for six weeks initially. He experienced considerable headaches, loss of short-term and new memory, loss of concentration and dizzy spells. Subsequently he suffered from two severe angina attacks which necessitated admission to the Coronary Care Unit. The Plaintiff continued to suffer from debilitating angina and ultimately his employment was terminated on 4th December 1990. He has not worked since that day, and is unlikely ever to be able to work again.'

The Statement of Claim goes on to add:-

`The Plaintiff has suffered from a debilitating depression as a direct result of the accident and his consequent inability to pursue his profession. He is to undergo psychiatric assessment. In addition, he finds that he is a very nervous passenger in motor vehicles, which has rendered him virtually housebound. The Plaintiff's overall quality of life has been severely diminished as a result of the accident, and he has become a changed man, putting a great strain on his family and marriage.'"

5. Liability for the crash has been admitted by the defendants. The case, regrettably, was conducted at a very slow rate of progress: as the judge pointed out, something that tended to happen in the world before the Civil Procedure Rules. At some stage of that lengthy process the defendant company, National Leisure Catering Limited, had, as the judge understood it, disappeared. Certainly those representing it in these proceedings were handicapped by not having ready access to either the company's documents or the personnel who had been responsible in that company at the time of the events complained of.
6. The judge formulated the issue that he had to determine in these terms:

"It is accepted by the specialists who have examined the Claimant that he is not malingering although his present condition is, to say the least, an unusual and puzzling consequence of a minor to moderate head injury. I have to determine whether his present condition was caused by that head injury or arose subsequently from matters causally unconnected with the injury."

7. It has already been made clear, but I would emphasise, that the claimant's present condition is one of serious psychiatric disability: a condition that is not expected to improve.
8. The claimant was born in 1946. He originally worked in Ireland, but came to Great Britain at some stage, I think, of his adult life. He took up employment as a chef, an employment at which he was apparently successful. There was a history of illness in the form of chest pains and suspected angina between 1980 and 1986, but no evidence of that after that latter date.
9. In 1989 the defendants were responsible for the catering at the Wembley Entertainment and Sports Complex, the general arrangement of which is no doubt sufficiently well-known not to need repetition. Mr Thomas Pryor held the post of executive chef for the whole of the Wembley Complex. He knew Mr Stacey and he secured a post for him at the Arena Restaurant, which was part of that complex. Mr Stacey started work with the defendants on 21st September 1989. At some point he became head chef of that restaurant. There is great dispute in this case as to exactly in what capacity Mr Stacey joined the defendants; at what stage he became employed at the Arena Restaurant; and when he became head chef of it. The reasons for that dispute will become apparent shortly.
10. The accident occurred on 3rd February 1990. Mr Stacey returned to work on 19th March 1990. Some of those who subsequently examined him for the purpose of this case suggested that that return might have been premature, but it was with the approval of the consultant orthopaedic surgeon who was then responsible for his care. Between October and November 1990 he suffered a recurrence of chest pains -or, if that is putting the matter too certainly, he suffered illness through chest pain - and was admitted to hospital in that connection. He was dismissed from employment on 4th December 1990, the reason apparently being illness or lack of ability to attend regularly because of actual or suspected angina.
11. Thereafter, he has declined to the present state of health that I have indicated. He suffered a number of financial difficulties. It is also necessary to mention, because it plays some part in the case later, that in 1991 a son who was living at home with him was required to leave; and in 1993 another son of Mr Stacey was apparently charged with committing murder, the son who had earlier left home being implicated in that charge.
12. There is agreement on Mr Stacey's health and abilities as a worker before the accident happened. The judge said this:

"The Claimant's Pre-Accident Condition

There was no dispute about this. The Claimant was vigorous, capable, on top of his job, good-humoured and well regarded by those who came into contact with him. The correspondence praising his work speaks for itself and is confirmed by Mr Pryor and Mr Davies."

13. Those latter are two gentlemen to whom I shall have to refer in some detail.
14. The judge, in determining the question that he had correctly identified for himself, as already set out, said that the case was extremely difficult and its problems (already difficult, no doubt, in a case of psychiatric rather than physical illness) were compounded by a series of evidential problems and evidential lacunae. Those he summarised and set out in his judgment in terms that again I cannot improve on and I therefore quote them verbatim: "Lack of firm evidence of a probable cause of the idiopathic chest pains, particularly in 1980 and 1986 and whether those of October/November 1990 can be related to the accident. When they were thought to be symptoms of ischaemic heart disease they could not be so related.
15. The history of the Claimant's engagement by the Defendant in September 1989 and subsequent advancement to salaried Head Chef: did the latter, which the documents put firmly in July 1990, in fact take place before the accident? The Defendant, as a body corporate, has vanished, and neither party was able to call the signatories of the 1990 documents, and documentary evidence was largely confined to what had been obtained in the early stages of the action or retained by Mrs Stacey.
16. Lack of clear evidence of the Claimant's physical and mental condition after the accident but before he returned to work, and then of his performance at work until the onset of the `angina' that was the ostensible cause of his dismissal on 4th December 1990.
17. The fact that the numerous specialists and others who have examined the Claimant have had to work from a combination of rather tenuous information about the immediate sequelae of the accident, and an overpainted picture by Mrs Stacey."
18. The overpainted picture by Mrs Stacey that the judge referred to was only one of the many aspects of Mrs Stacey's evidence that the judge found to be unreliable. She had given strong evidence about Mr Stacey's deterioration immediately after the accident. That, if acted on, would of course have been cogent evidence in relation to the problem that the judge had to decide. However, the judge found that evidence to be unreliable, as indeed he found all of Mrs Stacey's evidence to be unreliable. Although that was a matter that undoubtedly increased the judge's difficulty in deciding the case, it is quite clear from his judgment that he was very alert to the fact that he had, to put it shortly, disbelieved much of what Mrs Stacey had said and was careful not to act on it. It was suggested in this appeal that, nonetheless, Mrs Stacey might have had an effect on the course of the trial, as it were, at second hand, in that a number of the doctors who had examined Mr Stacey had taken a history from Mrs Stacey as well as from Mr Stacey; it apparently always having been the case, at least in the early stages, that they attended the doctors together.
19. The judge was, however, alert to that problem also. That is shown by his dealing in his judgment with the evidence of Dr Rose. The judge set out the way in which Dr Rose was cross-examined by Mr Ticciati and, having rejected some of the criticism, said this:

"A more valid criticism of Dr Rose was that he had accepted without reservation Mrs Stacey's overpainted picture but granted my findings his conclusion

`at some time Mr Stacey developed a more severe psychiatric state, almost certainly, at least in part, in reaction to the problems set in train after the accident in February 1990'

is not invalidated."

20. That, if I may respectfully say so, demonstrates an acute realisation by the judge that he must look with care at any evidence based upon anything said by Mrs Stacey and should only act (as in this aspect of the case he did only act) on findings that did not depend upon what she had said.
21. The issue before the judge effectively came down to evidence that he was given by Mr Pryor as to Mr Stacey's state on his return to work and as to the question of when Mr Stacey had been promoted; because if the promotion took place after the accident, that is strong evidence of the accident not having been the cause of his deterioration. It was on this point that this part of the appeal concentrated. Mr Ticciati said in his submissions to us that Mr Pryor's evidence, and the judge's reliance on it, was fundamental in the case. In the first two paragraphs of his clear and helpful skeleton argument Mr Ticciati has underlined that aspect of the appeal by saying this:

"The learned Judge's finding that the Claimant deteriorated after the accident was dependent on Mr Pryor's evidence (a) that on his return to work and thereafter the Claimant was barely capable of doing his job and (b) that the Claimant had been promoted before and not after the accident."

22. Mr Ticciati also sets out (and, in my judgement, properly so does) what the learned judge had said in the course of submissions made after the trial as to whether permission should be granted by him to appeal - permission that he did not grant. Mr Ticciati enquired of the judge whether the two aspects of Mr Pryor's evidence (that is to say, the evidence about promotion and the evidence about the claimant's condition) stood or fell together, and the judge, in effect, said that they did. It is therefore important to turn to the issue of Mr Stacey's promotion to the post of head chef at the Arena Restaurant.
23. The appellants rely strongly, as they had done at the trial, on a number of documents that appear to show that Mr Stacey had been promoted to this position on 26th July 1990: that is to say, when he had returned to work after his accident: a circumstance that, if it occurred, was significantly contrary to Mr Pryor's evidence about his condition. Indeed, Mr Pryor, as one reason for denying that Mr Stacey had been promoted then, said that he, as executive chef, could not have countenanced the promotion of a man in Mr Stacey's condition in July 1990 because that would have reflected adversely upon his, Mr Pryor's, own competence and ability to hold down his job as executive chef.
24. The problem about the documents goes back to what the judge had said earlier about the state of the evidence on the part of the defendants. The documents relied on were not produced from the files of the defendants, and certainly were not proved by anybody giving evidence on the part of the defendant company. It appears that they were produced by Mrs Stacey as documents that she had retained or had in her possession dating back to the early days of the case. Mr Ticciati reasonably said that, that being so, the claimant could not suggest that the documents were not in themselves genuine documents. That leaves open, however, the question of what exactly they demonstrate.
25. The first of them is a letter of 14th June 1990 written to Mr Stacey by a Mr Mayers, the then managing director of National Leisure Catering Ltd, a gentleman who equally does not seem to be in contact with the defendants or their advisers. It is personalised "Dear John" and it is headed "Re: Job Evaluation Company Presentation". It says that a job evaluation exercise is being carried out across the company and that the purpose is to ensure that the company in future provides what is described as:

"... a systematic approach to salaries, which enables it to publish to all of its people the various structures and grades which operate across the business."

26. Then it says:

"Those of you who are actually affected by the Job Evaluation Scheme immediately will be interviewed shortly by your Manager. For those of you not immediately affected, your Manager will give a brief outline of the scheme as soon as possible."

27. Mr Ticciati fairly accepted that that letter in itself carried no indication of consideration for, much less the actuality of, promotion.
28. There is then a contract of employment of a fairly detailed nature. It is signed on behalf of the company by a lady called Gail Spratley, who had also in fact signed the letter of 14th June 1990 on behalf of the managing director. This is addressed to Mr Stacey at his home address and headed "Terms and Conditions of Employment". It commences:

"TITLE: RESTAURANT CHEF

1.Your date of commencement will be: 26th July 1990.

2.You will be directly responsible to: The Executive Chef.

3.Your salary on appointment will be £13,500 per annum paid monthly in arrears ..."

29. There are then detailed provisions of the sort one would expect to find in the employment contracts of a reasonably substantial company. These go back to the provisions in the letter of 14th June relating to the company's desire to put its salaries on a standard structure. To take up a point that will arise later, there are provisions in this contract for health insurance and holidays with pay, as well as sick leave and the customary provisions about misconduct.
30. The next document is a handwritten one, the provenance of which is more obscure than those that we have just looked at, which sets out Mr Stacey's gross and net pay from February 1990 to October 1990. This again was a document produced apparently by the claimant. Nobody proved it. Nobody was able to say exactly what it is, but it seems that it was probably a handwritten note made up by the company, presumably from its records, when Mr Stacey's original solicitors (not those who now represent him, as I understand it) made enquiries in connection with a quantum claim when these proceedings were originally launched. Everybody at the trial and before us seems to have worked on the basis that it was, so far as it went, a genuine document. It appears to show, in accordance with the contractual document we have just looked at, that the terms of Mr Stacey's employment did indeed change in August of 1990, in that before that month the income is set out on a weekly basis, whereas in August, September and October 1990 he is paid on a monthly basis. The defendants argue that this was the strongest possible corroboration that the dates shown in the written contract of employment were in fact correct and that there had been a change in Mr Stacey's employment in terms of promotion in July 1990.
31. The document itself, one has to say, is puzzling in a number of respects. As we have seen, the annual salary provided for in the contract of employment was £13,500 a year. This document, for the three months August, September and October, records a net payment each month of £1,125. That is, broadly speaking, a payment at an annual rate of £13,500; but the figure shown in the contract was no doubt a gross and not a net figure. However, in one of the months the figure is in fact £1,125 gross as well as net. I make those points not to say that one can adduce anything in terms from this document, but to indicate the difficulty of dealing with it when one does not have the benefit of any explanation by the person who actually drew it up. Nor, indeed, do we know whether the person who drew it up simply went to the personnel files, in which case they would presumably have found the contract document showing August 1990 as the date of the change; or whether it was drawn directly from the pay records.
32. The point that was made about it before the judge and repeated before us so far as pay was concerned, which the judge records in his judgment, is that the actual pay rates shown in August, September and October were not significantly different from those that are shown as having been on a weekly basis before that time. That might indicate that whatever happened in August did not involve a change of duties. As against that, Mr Ticciati points out that those aspects of the contract to which I have already drawn attention conferred what might be called "staff rights" on the contract holder, including valuable benefits such as health insurance and paid holidays.
33. As I have said, nobody from the defendants proved this document or the other two contractual documents. That, in my judgement, is not conclusive. Before us Mr Tillett QC, in his skeleton argument, sought to rely upon what was said by Lord Diplock in British Railways Board v Herrington [1972] AC 877, at 930, as to the assumptions that may be made against persons, particularly corporate entities, that chose not to call evidence on a particular aspect of the case. Here, however, I accept that it is not a matter of choice that nobody from the company gave evidence on this matter. Mr Ticciati explained that it only became apparent somewhat late in the preparation of the trial that the status of these documents was going to be in issue. Be that as it may, this is not a case where the defendants have deliberately chosen to stand on a document and nothing else. At the same time, however, the fact that there is no evidential context in which the defendants put these documents should have made the judge approach this evidence with some caution, and that is indeed what I think he did.
34. The fact that the documents demonstrated that Mr Stacey had been promoted in August 1990 was vigorously denied by Mr Pryor when he gave evidence. The important passage of the judge's judgment on that matter is as follows:

"It is at this stage that the evidential deficit to which I have referred poses the greatest difficulty. The Evaluation letter in June followed by the Terms and Conditions in July point to a promotion. Mr Ticciati's best point was when he put to Mr Pryor that a move from a weekly wage to a monthly salary would be conclusive evidence of promotion. Mr Pryor agreed. He was then taken to page 552 showing the end of weekly payments in the week ending 3rd August 1990 and monthly payments in August, September and October, followed by weekly sick pay in November. Mr Pryor's answer was that some salaried people were paid weekly with overtime but was adamant that he promoted the Claimant in 1989. He was responsible for hiring and firing chefs and he would not have offered the Claimant a job as Head Chef in July 1990 `because it would have put my own job on the line'. This has not been an easy matter to resolve. The Claimant was originally employed as a `permanent casual', that is, his employment was ongoing but if he was not needed he was sent home. In the context of the various Wembley catering facilities this is understandable. The change in July 1990 was from permanent casual to staff but, on the evidence of Mr Pryor and Mr Davies, without change in the nature of the Claimant's work and responsibilities. ...

I have not found the resolution of this issue an easy one. I am, however, drawn to the conclusion that the Defendant was regularising a de facto situation, acknowledging that the Claimant, who had been Head Chef of the Arena Restaurant for many months, should have been given staff status. Mr Pryor said that the Defendant's paperwork was chaotic. In the context of a period of rapid expansion and staff recruitment, this is understandable. It was not a promotion but a belated recognition of the status quo."

35. On the face of it, that was a conclusion that the judge was entitled to reach. While documents are often conclusive in the absence of other evidence, if they are looked at in isolation they can sometimes mislead. That is particularly so if the people who originated the documents are not called to give evidence about them. Mr Ticciati indeed asked Mr Pryor about Mrs Spratley, the signatory of the contract, in a passage of cross-examination that he referred to in the course of the appeal (p.25 of our bundle). In connection with the contention that the paperwork was in a muddle, he asked whether Mrs Spratley was a competent lady. Mr Pryor said that, as far as he knew, she was. Mr Ticciati pointed out to him that the reason the question was being asked was that Mr Pryor was the only person available to the court who had been present on the staff in 1990 and had actual knowledge of what was going on. That was a fair point. But if a witness is examined on the basis that he is knowledgeable about the business, or at least was present and was the only person present, it may be difficult for the judge not to act on what that witness says. Moreover, Mr Pryor was not just a bystander: he was, at least on his evidence, the man who actually made the decision as to promotion. As I have said, the judge would normally be entitled to act on that evidence.
36. It is convenient at this point to say something about Mr Davies, of whom mention has been made. He was a person who, although he gave evidence, was much less clear about what had occurred, and he appears to have been in a position junior to Mr Pryor. I do not think, reading the judge's judgment, that he placed much weight on what Mr Davies said, and I am quite clear that he would not have acted on Mr Davies's evidence if he had not felt able to believe the evidence in the same sense of Mr Pryor. I shall therefore say no more about Mr Davies. I think it was agreed that no separate point arises in relation to him.
37. To return to Mr Pryor, the appellants say that, although the judge saw and heard him in the witness box, he was not entitled to act on what Mr Pryor said because his evidence was patently unreliable. There are a series of criticisms:

(1)He was wrong in his original witness statement about the date on which the Arena opened. He said it opened after the claimant joined the defendants at Wembley, and he was thereupon appointed head chef in July 1990. When taxed with this, he explained it by saying, in a supplementary witness statement, that the date he had originally given had been given to him by the claimant's former solicitors and he had not checked it.

(2)He originally said that Mr Stacey became the head chef of the Arena six months after he started with the defendants at Wembley. This did not fit with the date of the accident. Thereafter, in other evidence, Mr Pryor said that the period had been four or five weeks. Indeed, he suggested for the first time under cross-examination that other people had been tried for that purpose.

(3)As we have seen and as the judge set out, he agreed in cross-examination that a move from weekly to monthly payments would be conclusive as to a change of status. Then, when confronted with the documents, he gave the explanation of them that the judge accepted.

(4)The judge said that Mr Pryor had no reason to give a distorted or partial account of events. Mr Ticciati said that, in so concluding, the judge must have overlooked evidence that had been given, both by Mr Pryor and by Mrs Spratley, that Mr Stacey and Mr Pryor were not merely workmates but actual friends. He said that Mr Pryor, when taxed with that, sought to undervalue or diminish the extent of the previous acquaintance that he had given evidence of.

(5)The medical evidence was inconsistent with the description of Mr Stacey's state given by Mr Pryor. There is no evidence of him visiting his general practitioner during the period in question. He had been discharged by Mr Floyd as fit to return to work. After he had been dismissed he paid a considerable number of visits to his general practitioner between October 1990 and November 1991, without any significant mention of post-concussional symptoms.

38. The judge dealt to some extent with these criticisms, though I have little doubt that his overall consideration was focused on the issue that is said to be the central one in the case: that is to say, the matter of promotion and the view he had formed of Mr Pryor's evidence about it - evidence that it is hardly necessary to say was cross-examined, entirely properly, rigorously and with great skill.
39. One overwhelming background factor that must necessarily pervade the whole of this inquiry was whether it was medically possible for the claimant's condition to have developed as it was said to have done. The medical evidence (which we have not been taken to, principally because, as I understand it, it is not at the end of the day challenged) was that it was medically possible, even though unusual. As to some of the other criticisms that were made, there was some evidence at least of post-concussional symptoms other than that given by Mr Pryor. The judge said (strictly speaking, in a passage about the claimant's condition after dismissal, but the period starts before that):

"... there is evidence from a variety of sources of continuing post-concussional symptoms. On 17th October 1990, the GP has recorded:-

`[Road traffic accident] March [1990] - head injury. Off work 2½ months. Under Mr Floyd - Saxon Clinic. Since then difficulty concentrating.'

There are then a substantial number of visits without any mention of post-concussional symptoms. The Claimant was examined by Mr Martin Wetherill on 14th November [1990]. Mr Wetherill is a Consultant Orthopaedic Surgeon at the Department of Trauma and Orthopaedics at [Milton Keynes General Hospital]. He recorded:

`Continues with headaches several times a week accompanied by dizzy spells with loss of concentration. This affects his work and leisure activities.'"

40. It was pointed out in that connection that Mr Wetherill was in fact examining Mr Stacey at the instance of Mr Stacey's solicitors. Mr Stacey might have been fabricating or exaggerating. Nonetheless, it was clearly a matter that the judge was prepared to act on.
41. As to the matter of partiality, I would accept that the judge may have gone too far in saying that there was no reason whatsoever for Mr Pryor to give a distorted or partial account. But for Mr Pryor's evidence to be disgarded on a ground such as that it would, in my judgement, have been necessary to establish that he was really fabricating his evidence from start to finish. Although he was challenged as to his relationship with the claimant, I do not think that it was ever put to him that his evidence was based on that type of partiality or fabrication. Certainly I think the judge was entitled to conclude, not perhaps that there was no ground at all for such a criticism, but that such a criticism had not been in the event made out.
42. At the end of the day, the judge heard Mr Pryor give his evidence and he came to these conclusions:

"I am left in no doubt that the Claimant was suffering from typical post-concussional sequelae - headaches, loss of concentration, memory lapses, irritability and fatigue. As I have remarked earlier, there was a general consensus that he returned to work too soon, but no evidence whatsoever that he was under any pressure from the Defendant to do so. Mr Pryor said that he would not have had the Claimant back without a medical certificate. I am also in no doubt that the Claimant did not make the gradual recovery which is the normal expectation following a mild to moderate head injury. This may be explained by the stress of his work and of commuting from Milton Keynes to Wembley by car which he did regularly though not as frequently as before his accident.

In arriving at these conclusions, I have accepted the generality of both Mr Pryor's and Mr Davies' evidence. True it is that Mr Pryor originally got his dates and sequences wrong and that Mr Davies' recollection was limited, but neither had any reason to give a distorted or partial account, and Mr Pryor's recollections of having to support the Claimant, and the particular instance of the soup doctored with coriander, have the ring of truth. I discount the more dramatic assertions of Mrs Stacey and her daughters."

43. That is a conclusion, based upon the evidence he had heard and the way it had been given, that was, in my judgement, well open to the judge. The judge also rejected other explanations that had been advanced or suggested to explain the claimant's state without reference to the accident. These were summarised by him in his judgment as follows:

"The subsequent chest pains were wholly unconnected with the accident and were the sole cause of the Claimant's loss of his employment. Those events set in train the catastrophic decline that ensued. The symptoms reported after October 1990 and up to the end of 1991 which the Claimant seeks to attribute to post-concussional syndrome were either simply not there (he may perfectly well at this stage have been exaggerating his symptoms for the purposes of his claim) or were the product of his anxiety state, or were the product of the drugs which had been prescribed to combat what had wrongly been diagnosed as angina, but in any event were insufficiently important to warrant mention to his GP. There is no reason to attribute them to the accident. The subsequent deterioration cannot be explained on the basis of head injury but can be explained on the basis of other life events, notably the eviction of Glen from the home, the very severe financial difficulties, the murder charge and the illness behaviour encouraged by the well-intentioned efforts of Mrs Stacey and numerous others."

44. The judge concluded as to those suggestions:

"I have already referred to Mr Floyd and have found that the Claimant was suffering from post-concussional symptoms when he returned to work and that these persisted until the October."

45. Later, he said:

"As to the other matters which were raised as possible stressors, the departure of Glen, financial difficulties and the murder charge, all of which occurred after October 1990, I take the view that the sending away of Glen was a consequence of the Claimant's greatly lowered tolerance, that the financial problems were simply a vicissitude of life and that the murder charge, terrible though it was for the family, was in no sense an intervening cause breaking the chain of causation. In any event, the Claimant's condition by then was such that his reaction to the news of the charges against John and Glen was abnormally detached and unconcerned. I reject these matters as major contributory causes to the Claimant's condition."

46. Then the judge said:

"At the end of the day I have no difficulty in reaching the conclusion that the injury materially contributed to the Claimant's psychological condition which commenced towards the end of 1990 but was not diagnosed until November 1992 but which thereafter progressed rapidly."

47. The judge reached that conclusion after an extremely detailed and careful consideration of the case and after, if I may say so, every possible criticism of the claimant and his case and every possible matter that could be raised on the part of the defendants had been very fully and ably put before him. It is a conclusion that he was entitled to reach. This court is no better placed than he was to take a different view and I would not disturb the judge's findings in that respect.
48. I turn to the question of quantum. There are four complaints made about the way in which the judge dealt with quantum, the first three being set out in the grounds of appeal. The first concerns the multiplier for loss of future earnings. Ground 2 of the grounds of appeal says:

"The learned judge assessed the claim for future loss of earnings by applying to an agreed multiplicand of £13,445.12 a multiplier of 9.07 which was for the full period of the claim (i.e. to age 65) discounted only to reflect the average risk of mortality. As a matter of law the multiplier should have been further discounted (a) for contingencies other than mortality and (b) to reflect the fact that it was common ground that the claimant's life expectancy was very substantially reduced (from about 33 years to 18 years)."

49. The contention that the multiplier must be reduced to take into account contingencies other than mortality is principally based upon guidance notes in the Ogden Tables, particularly at paragraph 27, which says:

"Since the risk of mortality has already been taken into account in the Tables, the principal contingencies in respect of which a further reduction is to be made are illness and unemployment."

50. Then paragraph 31 says that, in order to fulfil that principle, the figure in the table "should" be reduced by multiplying it by a figure selected from the table set out below, according to the claimant's age.
51. In this case a series of factual contentions were put before the judge as to whether in fact Mr Stacey himself would be the subject of contingencies other than those attributed to mortality, and competing considerations were set out on both sides. In the end, the judge was not persuaded by any of them to change the position one way or the other: neither by the contention that Mr Stacey might have worked beyond the age of 65, nor by the contention that he had had a stressful working life. I do not accept that in a case such as that, where there has been argument about the actual condition of the claimant himself, the obligation to discount, as the Ogden Tables appear to put it, still remains. The tables are, after all, designed for the average case. If arguments are adduced before the judge saying that the case is not average, it seems to me that he is entitled to act on those arguments, and here he found them equally balanced. In saying that, I have also to say that I do not think that the passage from the speech of Lord Bridge of Harwich in Hunt v Severs [1994] 2 AC 350, at 365D, is addressing itself to this point. It seems to me to be addressing itself to how one should proceed in the absence of actuarial evidence. I do not think, with respect, that it supports any indication that there must be in any event a 10% reduction.
52. That was one aspect of the complaint about the multiplier. The other was more radical, and it was this. Mr Stacey was agreed to have a significantly lower life expectancy than would be the case with an average man of his age. The Ogden figure is of course based upon the average. It was said that therefore there must be a significant reduction to take account of the fact that Mr Stacey was not the normal Ogden man. The difficulty about that argument is that, the parties having agreed to start from the basis of Ogden, the judge must be given some evidence, albeit of an outline nature, as to how the life expectancy figure for this actual claimant impacts upon the Ogden calculation. The judge said that he did not feel able to substitute guesswork for evidence about the actual impact upon this calculation of the different life expectancy. In my judgement, he was right to take that view. I fear it is the case that, in the modern world of litigation, if the parties are going to start from the basis of the Ogden Tables, they have got to give the judge more cogent reasons than he was given in this case for departing from that table simply on the basis of this particular claimant's life expectancy. The judge was entitled to retain the multiplier at 9.07.
53. The second complaint is with regard to the assessment of future care. The judge assessed the claim for future care by applying an agreed multiplier to a multiplicand of £30,637. That was a figure given by the claimant's care expert for long term care. That figure assumed that Mrs Stacey would play no part in the care process. It provided for a housekeeper and for 28 hours work by a key worker. The judge quite deliberately understood that he was adopting for this purpose a figure that excluded Mrs Stacey from the care process. He said this:

"... the Claimant [contended for a schedule drawn up by the claimant's expert witness] on the footing that Mrs Stacey was entitled to be free to resume her own career and to be relieved of the undoubted strain of continuing care. I adhere to the view which I had taken earlier that Mrs Stacey is entitled to be relieved of the burden of caring for her husband whether full-time or part-time which she has borne for many years."

54. When Mr Ticciati was asked whether the judge was entitled to take that view, he (although, I think, not conceding the point) gave no reason why the judge should not be entitled to take that view. For my part, I consider that it was not only fully within the judge's entitlement but, as a matter of logic, right that he should take that position. The purpose of damages is to put the parties, including their relatives, in the position that they would have been in if the accident had not occurred. If the accident had not occurred, whatever else Mrs Stacey was doing, she would not have been spending her time caring for a person who is psychologically deeply damaged. That, in my judgement, is the end of this point. The judge was entitled to proceed on the basis that he did.
55. It was, however, further complained that what the judge had concluded was inconsistent with his findings as to the allowance for Mrs Stacey's past care, which he also had to decide, which he had allowed at 42 hours per week. This, it was argued, was a finding by the judge as to the amount of care that the claimant required. That is not what the judge found in that passage of his judgment. What he found was that, in the circumstances that had obtained until the date of trial, 42 hours of Mrs Stacey's time as the sole carer was a reasonable figure. As Mr Tillett pertinently said in connection with that argument, there is a world of difference between the hours of actual caring that can be claimed for by a person who is in any event in the home all the time, and the hours that need to be provided on the basis, on the hypothesis rightly accepted by the judge, that the wife is not in the home at all, at least for caring purposes. The two findings were not inconsistent. The finding as to future care was not open to criticism.
56. Thirdly, a point is raised about the judge's award for care management. It is properly accepted that that stands or falls with the second point. The judge was right, on the basis that he adopted for future care, to include the element that he did for care management.
57. The fourth point is completely separate from everything that has gone before. The judge made an award for Court of Protection fees lower than the basis that the claimant had claimed for. He made an award in the sum of £39,137, which the claimant/respondent did not appeal. Since the trial (in circumstances that are set out in the most cogent detail in Mr Ticciati's supplementary skeleton, which I will not start to try to explain) the basis upon which the Court of Protection charges fees has been significantly changed and it is, I think, now accepted that on the new financial basis the cost is represented by an award, not of £39,000, but of £27,000. Mr Ticciati seeks, therefore, to appeal out of time in order that we should substitute a figure for the current charging rates for that which was the figure at the time the matter was before the judge. That application was resisted by the claimant's advisers, not on the basis that the figures were wrong, but on the basis that it was the introduction of fresh evidence out of time, it was disrupting the basis upon which the matter had been tried, and it was an unwarranted extension of the original litigation.
58. Those arguments may well be very forceful in a case different from the present; but this point is not in the normal run of points. It is, as I have said, a completely separate point from the rest of the appeal. It is concerned with a simple figure and calculation and does not involve any further argument and, in my judgement, does not really even properly involve the introduction of fresh evidence; because simply to point out that the statutory provisions and the practices in particular Government offices have changed is a long way away from the production of fresh evidence of the sort that, for instance, was in issue in Mulholland v Mitchell [1971] AC 666. We do not open any floodgate by permitting this appeal to succeed on this narrow and separate point. It is, of course, no doubt the good fortune of the defendants that the point came to hand whilst this appeal was still current. Had the appeal been determined by this time, a very different situation would arise; and, as Mr Ticciati very fairly said, if this had been the only point he had grounds to complain of, he no doubt would not have appealed at all.
59. Be all that as it may, I, for my part, would grant permission to amend the grounds of appeal to introduce this argument and I would allow the appeal to the extent, but to the extent only, that, in respect of the award for Court of Protection costs, for the judge's figure there should be substituted the figure of £27,772. In every other respect, this appeal fails.
60. MR JUSTICE BODEY: I agree.
61. LORD JUSTICE HENRY:I also agree.
Order: appeal allowed only in respect of Court of Protection costs, to the extent of substituting the figure of £27,772 for that of the judge, the appeal being dismissed in every other respect; appellant defendants to pay the costs of this appeal on the standard basis; court stated that it saw nothing to criticise in there being two counsel instructed by the respondent claimant on this appeal. Order does not form part of approved Judgment)