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
SHEFFIELD DISTRICT REGISTRY
(His Honour Judge Cracknell)

		Royal Courts of Justice Strand London WC2 Thursday, 5th April 2001

1. LORD JUSTICE HENRY:I will ask Lady Justice Hale to give the first judgment.
2. LADY JUSTICE HALE:This is a claimant's application for permission to appeal on further grounds against the order of His Honour Judge Cracknell, sitting as a Deputy High Court Judge in the Sheffield District Registry, made on 19th January 2001.
3. The trial ended on 17th November. There was a written judgment dated 19th December 2000, and so there was no undue delay between the hearing of the evidence and the judgment.
4. The case related to a road traffic accident which took place on 28th October 1996. The claimant had been a back seat passenger, but was not wearing a seat belt. Liability was agreed at 85 per cent. His injuries were summarised by the judge like this:

"... the Claimant suffered a severe head injury with extensive fracturing of the facial bones. It was complicated by a chronic sub-dural haematoma which required, on the 19th November 1996, an operation for the removal of necrotic brain tissue from a frontal lobe by way of a burr hole. There is an increased risk of epilepsy. He also suffered a fracture of the mid-shaft of the right femur which has left him with a slight loss of movement in the right hip. There was some injury to his shoulder which in essence gives him presently, it is alleged, some minor discomfort. There is alleged to be some ophthalmic deficit."

5. For general damages, the judge awarded £21,500 in respect of the head injury. He put this at the top end of the category of minor brain damage in the Judicial Studies Board Guidelines. For the other injuries, he awarded a total of £18,500 (£3,500 for the shoulder; £7,000 for the femur; £5,000 for the eye; and £3,000 for the chest). But he seems to have left out of account altogether the very serious facial injuries: the Le Fort II and mandibular fractures, said to be worth between £17,000 and £18,250 on their own.
6. Hence, I have already given permission to appeal against the award of general damages. These were, on any view, grave multiple injuries, for which the argument that a total of £40,000 was too low has a very real prospect of substantial success.
7. As far as the other points of claim are concerned, the claim for past loss of earnings was not pursued. For past care, the judge awarded £3,000. For future loss of earnings and future care, the judge found that the claims were not made out; nor was the claim for future domestic assistance. He awarded £1,850 for future dental treatment and, at that time, an unascertained sum for Court of Protection fees.
8. Today Miss McNeill, on behalf of the claimant, renews the application for permission to appeal on all grounds; in particular, in relation to the future loss of earnings or earning capacity and care costs. Her argument is based principally upon the alleged lack of transparency in the judgment, relying on Flannery v Halifax Estate Agencies Limited [2000] 1 All ER 373, and the improper drawing of adverse inferences against the claimant. She therefore wants the whole case to be sent back for a rehearing before a different judge with everything in issue.
9. The problem was that the claimant had been living mainly at home and claiming benefits on the basis that he was psychiatrically unfit for work before the accident. His treating consultant psychiatrist describes him as suffering from persistent anxiety/panic due to post-traumatic stress disorder; yet his family claimed that he had been malingering in order to defraud the Department of Social Security. They claimed that he had suffered a substantial change since the accident and had become like a "little old man". The judge had, however, seen a video which to him suggested no such thing. He also gained a rather different impression from the evidence given by a girlfriend who had met him after the accident and had been living with him for the past 18 months. The claimant himself did not give evidence and the judge concluded that that was for tactical reasons.
10. Clearly, the claimant had sustained brain damage as a result of the accident. But there was a difference between the medical experts as to the effects of that and, in particular, whether he was suffering from frontal lobe syndrome. As between the consultant clinical neuropsychologists, the judge preferred the evidence of Dr van den Broek, for the defendant, to that of Dr Priestley, for the claimant. He gave broad reasons for this:

"The joint statement tells me that they are agreed in their view that the Claimant is `independent in his selfcare' but that Dr Priestley believes that his ability to live independently has been significantly compromised. Dr van den Broek does not. Dr Priestley believes that the Claimant's employment prospects are diminished due to the frontal lobe damage. Dr van den Broek does not. ... I fear that Dr Priestley's impartiality may have been compromised by what appears to me to be a grasping at straws. In any event I regarded Dr van den Broek's evidence as more cogent. It seemed to me that the latter had looked at the premorbid history with a more critical eye and I can find no good or sufficient reason to prefer the evidence of Dr Priestley to that of Dr van den Broek. ... Dr van den Broek, who was an impressive witness in his own right as well as in comparison to Dr Priestley, told me in his conclusions that it seems unlikely that there has been a marked change of character and he was of the view that `premorbidly he was a feckless, impulsive individual with a propensity towards antisocial conduct and emotional problems'. All the evidence that I have heard and read leads me to the conclusion that it would be hard to express better the situation. Whilst there was some frontal lobe damage I am satisfied that such damage does not inevitably lead to what Dr Priestley diagnoses as Frontal Lobe Syndrome and that the evidence of Dr Priestley does not satisfy me on a balance of probabilities that such a syndrome exists here."

11. As between the consultant psychiatrists, the judge also preferred the evidence of Dr Wood, for the defendant, to that of Dr Scheepers, for the claimant, and again gave reasons:

"In summary Dr Wood is of the view that there was physical damage to the front left lobe and some signs of behavioural frontal lobe damage in the early stages of recovery but there has been now substantial recovery and he and the family are exaggerating his present disability. In short his present condition is no worse (and even perhaps better) than it was before, even though it possibly arises from different factors. Any residual damage from the head injury is minimal and certainly does not prevent him from working or living independently. Dr Scheepers thinks that Mr Jones is suffering from an Organic Personality Disorder i.e. Frontal Lobe Syndrome as a consequence of his traumatic brain injury."

Later on, he referred to Dr Scheepers' conclusions and said:

"In so far as he was building upon the family's history he was building on quicksand. In so far as he relied upon bizarre behaviour he, in my judgement, was not paying sufficient heed to the pre-accident medical history, confirmed by his readiness to discount, where it was inconvenient, the diagnosis of Dr Behan."

Dr Behan was the treating psychiatrist before the accident.

His conclusion was:

"... I accept, because it is borne out in the documentation, the views robustly expressed by Dr wood. This man is in no significantly different position post accident than he was before and any claim for future care is, frankly, fanciful ..."

Later on, he said:

"He is as capable, and perhaps even more capable, of living independently now as he was before."

Hence, his conclusion as to the loss of earnings claim was this:

"His employment record pre 1996 is patchy and the evidence unreliable. He was, in my judgement, effectively prevented from any meaningful employment by reason of his psychiatric condition. I see no change, except conceivably one for the better, since he is no longer apparently agoraphobic and is not dependent upon medication for survival."

12. It is difficult, in the light of those findings and that evidence, to argue that the judge did not give reasons for his decision or for preferring one expert's views over the other.
13. Miss McNeill has very skillfully and powerfully argued that the judge should have made clear and detailed findings of fact on four main points: first, the claimant's pre-existing psychiatric condition and prognosis; secondly, his continuing symptoms after the accident, especially any disinhibition and lack of concentration; thirdly, how those continuing symptoms might impact upon his future earning capacity; and fourthly, whether he was malingering, in what I might call the technical sense of inventing or exaggerating symptoms, rather than in the social sense of using such symptoms as he had to avoid doing more than he had to, which is the normal use of the word "malingering".
14. But that argument is a counsel of perfection, to which few of us could ever aspire. The judge was perfectly plain in his fundamental findings about what sort of person the claimant was, and why, before the accident, and what sort of person he was, and why, after the accident. He made clear his findings on the family evidence. He made clear which expert opinion he preferred, and why. He was entitled to take the view, on that evidence, that the claimant was no more disadvantaged either in his capacity for self-care and independent living or in the job market than he had been beforehand, even though the cause of that disadvantage may have been different.
15. Miss McNeill has also argued that the judge was wrong to take an adverse view of the case from what he regarded as the inflated claim for future care costs and the failure to call the claimant to give evidence. In particular, as to the latter, Dr Priestley had warned that his cognitive and behavioural problems made that inappropriate. But again, having formed a view of the credibility of the family evidence broadly unfavourable to the claimant's sister but more favourable to his current girlfriend, the judge was entitled to comment adversely on a six figure claim for future care costs based upon what the care expert had been told by the family; and having seen the video of the claimant behaving apparently quite normally and engaging in normal tasks, he was entitled to wonder why, if Dr Priestley was right, the claimant had not been called to contradict that impression.
16. Overall, in my view, the judge reached clear conclusions and he explained himself clearly. This is not a case in which the claimant should have a chance of a second trial before a different judge in the hope that that judge will form a different view. I would therefore refuse permission to appeal on the remaining grounds.
17. LORD JUSTICE HENRY:I agree. The consequence is that further permission to appeal is refused.
Order: application for further permission to appeal refused; no order for costs.