England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE McKENNA
(BIRMINGHAM COUNTY COURT)

		Royal Courts of Justice Strand London, WC2 Friday, 4 October 2002

1. LORD JUSTICE KENNEDY: This is a claimant's appeal from a decision of His Honour Judge McKenna, sitting at the County Court at Warwick, who, on 28 September 2001, gave judgment for the claimant in the sum of £13,797.31, being £3,964.81 special damages inclusive of interest, £9,000 general damages and £832.50 interest on general damages. The claim arose out of a road traffic accident which occurred on 5 February 1994 and liability was not in issue. In that accident the claimant and his then wife Joanne were injured. She was pregnant and lost the baby she was carrying. Her claim was settled. There was however an issue as to the effect of the accident upon the claimant. His case in outline was that as a result of the accident he suffered severe and prolonged psychiatric problems which are still evident, and are likely to continue. The defendant's case was that although he did suffer a bout of depression and post-traumatic stress disorder those problems, insofar as they were accident related, had resolved by June 1996.
2. Evidence

The claimant and his father gave oral evidence and there were before the court medical reports from Dr David Muss, a consultant psychologist, dated October 1994 and June 1996, and from Dr Milner, a consultant psychiatrist, dated 8 October 1999 and 26 September 2000. There were also letters from Dr Milner dated 13 October 2000, 20 October 2000 and 30 October 2000. There was also a report from an employment consultant, Mary Groves, dated 26 April 2001.

3. The letter of 13 October 2000

When counsel for the claimant, Mr Benson, who appeared in the court below but does not appear before us, was addressing the judge at end of hearing it emerged that the version of Dr Milner's letter of 13 October 2000 in the trial bundle was different to the version to which counsel was referring when making his submissions. In the trial bundle an important sentence read:

"Mr Gough is suffering from mental and behavioural problems due to drug and alcohol use."

In Mr Benson's version after the word "from" were the words "a depressive disorder related to the accident as well as". Both versions of the letter bore the same date. Only the version in the trial bundle had been signed by the doctor in person. The other version had been signed by someone on her behalf. That other version had been disclosed to the defendant's solicitors but, as I have said, it had not found its way into the trial bundle and no explanation for the existence of the two versions was immediately forthcoming.

4. When the existence of the two versions emerged at the hearing there was some discussion as to what should be done. Counsel for the defendant, who had only seen the version of the letter in the trial bundle, said that if he had been faced with the other version he would have tried to get some expert evidence to challenge it. Mr Benson accepted that the only thing he could do was, in his words, to plough on. He concluded his submissions and Mr Ferris, appearing for the defendant, then made his submissions. At the end of those submissions he turned to the letter, saying, "It's too late to adjourn now." He accepted that the judge should take account of the version of the letter not in the trial bundle because, as he knew by then, it had been disclosed to his instructing solicitors. He submitted that, having regard to the rest of what emanated from Dr Milner, little or no weight should be attached to the non-trial bundle version of the letter of 13 October 2000. Mr Benson criticised the defendant's advisers for not noticing the discrepancy and making inquiries. They had never seen the trial bundle version because the trial bundle was sent direct to their counsel. When invited to address the judge as to weight, Mr Benson said:

"If at the end of the day your interpretation and weight you are going to give to that letter in your Honour's view proves to be perhaps a crux of the case then I would have to ask for permission to have clarification from Dr Milner."

The judge then said:

" ..... there is absolutely no way I am going to entertain an adjournment of this trial for either party to call Dr Milner so we have to deal with it with what we have got."

5. Judgment

When he gave judgment on 28 September 2001, a week after the hearing, the judge dealt first with what had occurred since the accident. He then reviewed the reports of Dr Muss, the second being the report dated 1996, and continued:

"There is then a hiatus in the medical evidence until 1999. It is axiomatic that it is for the claimant to prove his case and clearly the medical evidence is an important element in that process. Now it is right that I should record at this stage that I have found the medical evidence to be very unsatisfactory. In the first place it is substantially out of date, there being no reference to the existence of a relationship with Cathy,"

who, I interpose, the claimant met in 2000 and married in 2001,

"still less any opinion expressed as to the future prognosis in the light of that very significant change of circumstances. There is then the highly unsatisfactory situation of two different versions of the same letter and a complete absence of any expert witness declaration as to their duties to the court required under CPR 35 (10). Moreover there is really no adequate explanation of the change of horses, if I can so put it, from Dr Muss to Dr Milner and no continuity of diagnosis between Dr Muss, who says in June 1996 that the claimant's post-traumatic stress disorder and associated depression had been successfully dealt with, and what Dr Milner says in 1999 and thereafter."

6. The judge then considered the reports and letters of Dr Milner. As to the letter of 13 October 2000 he said that it is an important letter. He refers to the differences between the two versions and then said:

" ..... as it seems to me, in the absence of any explanation as to what happened to lead to the two versions of the letter I have no alternative but to accept as accurate the version which was actually posted to the claimant's solicitors and which appears on its face to have been signed by Dr Milner rather than on her behalf. That letter does not make reference to the claimant suffering from a depressive disorder related to the accident as well as mental and behavioural problems due to drug and alcohol. Even if I am wrong to exclude that version of the letter entirely the weight to be attached to it must be substantially diminished in the light of various factors to which I have referred."

7. The judge carefully examined the claimant's relationship with his employers and others and concluded:

" ..... to the extent that the claimant did indeed suffer from psychological problems after June 1996 they are not attributable to the accident in February 1994 and in particular that the problems which he experienced in 1999 and 2000 were work- induced."

8. After judgment

After the judge had delivered judgment Mr Benson sought permission to appeal and attempted to introduce some documents to explain why there were two versions of Dr Milner's letter. The judge refused permission and he said:

"I considered very carefully how I should deal with the two competing letters. On the evidence that I had which, for the reasons that I set out in my judgment, I considered to be unsatisfactory in a number of areas it seemed to me that the report that was posted to the solicitors and is date stamped was signed by Dr Milner. There was no CPR 35 endorsement but nevertheless it was signed by Dr Milner. That makes no reference to depressive disorder. The other version is not signed by Dr Milner. It appears to be pp'd. I have no evidence as to how they came into existence, which came first, which was second, which was approved, which wasn't approved. What I could see was that the one without the depressive disorder was signed by the doctor and I did not think that I could go behind that, rightly or wrongly.

To the extent that there was no explanation it seems to me, as counsel for defendants say, that is squarely attributable to the claimant's solicitors and is a matter that the claimant ought to take up with the claimant's solicitors. I don't consider that it is a proper ground for appeal."

He added:

"I would add that when considering the question of permission to appeal I had it very much in mind that my rejection of the letter of 13th October was not to my mind determinative since regardless of the contents of the letter (i.e. whichever version I had read) I would nevertheless have come to the same conclusion as I did."

9. Grounds of Appeal

There are two grounds of appeal, namely -

(1) that the judge was wrong not to grant an adjournment on 21 September 2001 when it emerged there were two versions of the letter, and

(2) that in his judgment the trial judge was wrong to reject the non-trial bundle version of the letter and to decide as he did.

On a renewed application permission to appeal was granted by the single Lord Justice.

10. Situation pre-trial

In his submissions to us Mr Percival, who has appeared today on behalf of the claimant, understandably relied heavily upon the fact that the non-trial bundle version of Dr Milner's letter of 13 October 2000 had been disclosed to the defendant's solicitors prior to trial and that the defendant's solicitors had not challenged Dr Milner's conclusions by producing medical evidence of their own or by requiring Dr Milner to attend at court so that she could be cross-examined. But those advising the claimant were under no illusions as to the issue to be decided. It was, as is clear from all the documentation, whether the claimant's post-1996 problems could be attributed to the accident. In relation to that issue Dr Milner's opinion was relevant but it was clearly, rightly, not regarded as decisive or there would have been no need for a hearing. The judge's function was to decide that issue on the whole of the evidence including the written opinion of Dr Milner. I therefore cannot accept Mr Percival's assertion that the opinion of Dr Milner was unchallenged. Her opinion as to attributability was, as it seems to me, clearly under challenge. Indeed, it was at the heart of the case. It was clearly expressed in her second report which she concluded with this paragraph:

"In conclusion, I feel this thirty-six year old man continues to have difficulty related to the accident. I think as a result of him being unable to be with people at work, there is a possibility that this may have contributed to the fact he was chosen for redundancy: however, this is not clear. He continues to feel that life has presented him with an ordeal and I have some sympathies with his feelings regarding this. As a result of the accident, he finds himself in a position where he no longer has a wife and no children, which for him clearly was where he saw his life leading. I do think this causes him significant problems and has clearly affected his life irreversibly."

For understandable reasons, no doubt related to costs, it was decided that it was not necessary for Dr Milner to be at court to develop that conclusion or to defend it, but from the outset it was part of the evidence to which the judge had to have regard.

11. What was missing from Dr Milner's second report was the diagnosis, and that she supplied in response to a letter from the claimant's solicitors in her letter of 13 October 2000. Both in its original and in its expanded form the sentence under consideration is directed to her diagnosis of the claimant's problems at the time of examination. Her view as to attributability is also there but it had already been expressed.
12. At trial - Ground 1

Turning to the first ground of appeal, it seems to me that the judge's decision not to adjourn in order to give the claimant's advisers an opportunity to ascertain and explain why there were two copies of the letter of 13 October 2000 cannot be faulted. It was the claimant's solicitors who had prepared a trial bundle. In it they had put a letter signed by Dr Milner. Belatedly, the claimant's counsel produced a letter of the same day, not signed by the doctor but by someone on her behalf. Although the second version had been disclosed, it had not been seen either by the defendant's counsel or the judge. Those who were in court on behalf of the claimant were in no position to explain the discrepancy which, on analysis, added little to the case. The longer version was new only to the extent it disclosed a more elaborate diagnosis at the time of examination. In my judgment, the judge would have been fully entitled to require that the case proceed without further reference to the version of Dr Milner's letter which was not in the trial bundle. Because it had been seen by the defendant's solicitors he did not go quite that far. By refusing to adjourn he was exercising a discretionary power, and it is trite law that this court will not interfere with a decision made in the exercise of a discretionary power unless it is satisfied that the judge was plainly wrong. I am not so satisfied. I consider that in the circumstances with which he was confronted and having regard to the overriding objection, the judge was right and therefore, in my judgment, the first ground of appeal fails.

13. Ground 2 - Judgment

I turn to the second ground of appeal which concerns the judge's approach in his judgment to the two versions of the letter of 13 October 2000.

14. As the judge made clear, the claimant's post-accident history was revealing. The accident having occurred in April 1994, he was able to return to college to continue his HND studies in May 1994. At home he had serious problems. His wife had lost the baby she was carrying, a tragedy which had occurred because of the accident and both the claimant and his wife were upset. In August 1994 they split up. But there were stresses leading to that split-up which were unrelated to the relevant accident, and the judge, having considered them, was not satisfied that the claimant's psychological difficulties were the cause of the marriage break-up.
15. In October 1995 the claimant was examined by a consultant psychologist Dr Muss, to whom I have already referred. Dr Muss found depression and post-traumatic stress disorder. Treatment was provided. In June 1995 the claimant was top of his class when he completed his HND studies. He obtained a job and later that year he found a new partner, June, with whom he remained for three years. When Dr Muss saw him again in June 1996 he found that the post-traumatic stress disorder and the associated depression had been, in his opinion, successfully dealt with. The claimant was very anxious to have a child and Dr Muss offered to follow him up on a monthly basis to give what assistance he could. In 1996, again in 1997 and early in 1999 the claimant moved to better paid employment. But in 1999 he said he lost motivation and had time off work. He was seen for the first time by Dr Milner. He was drinking quite heavily and smoking marijuana. His relationship with June had come to an end. Whereas to Dr Milner the claimant was attributing his problems to the 1994 accident, to his employers he was attributing his problems to the stress to which he was exposed at work. That is clear from e:mail correspondence with his employers to which the judge referred. The claimant attempted to explain the apparent inconsistency on the basis that it was necessary to give no quarter when dealing with his employers. The judge was not impressed. He said:

" ..... do I accept the claimant's explanation of that apparent dichotomy? This depends in part on my assessment of his credibility and here I have to say that I found him to be less than frank. Indeed there were a number of areas in which his answers were at best evasive, particularly when questioned about the reference which appears in Dr Milner's report, ..... to having some kind of compensation, giving him a licence not to work, and of course about his employment and what he was saying to his employers about the reasons for his time off work. It also appeared to me that the claimant was taking a good deal of time choosing particularly carefully answers to questions put to him."

16. In July 2000 the claimant was warned of impending redundancy. The judge found it to be a genuine redundancy and it took effect in October 2000. In the previous month he was seen for the second and last time by Dr Milner. In October 2000 he met his current wife, Cathy. She is American and has four children. He travelled to America to see her in June 2001. They married in August, one month before the beginning of the trial.
17. I refer in outline to that body of evidence to show that the judge was not bound in any way to follow Dr Milner's opinion and say the problems encountered by the claimant after 1996 could be ascribed to the 1994 accident. In fairness to Dr Milner it should be said that she did not have the whole body of evidence before her, but she did not relate her findings to those of Dr Muss, whose report she did have. It is easy to see - when one looks at the evidence as a whole why the judge was dissatisfied with the medical evidence and why he concluded as he did. He was fully entitled to do so and, as he said, the difference between the versions of the letter of 13 October 2000 was not crucial.
18. Accordingly, the fact that the judge - in my view, rightly - treated the version in the trial bundle as the evidence in the case is of no real significance and so, in my view, the second ground of appeal fails. Accordingly, I would dismiss this appeal.
19. LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord. Two matters stand out in this appeal. First, the application for an adjournment, insofar as it was made at all, was to enable the client's advisers to put their case in order in the light of the fact that the wrong letter had been included by them in the trial bundle. That was proposed to be done and has now been done by their investigating what happened in their own offices in relation to the handling of two versions of the same letter. Thus stated, it is clear that it would have been a considerable indulgence for the judge to permit that course to be taken. No criticism can be made of him for the fact that he did not permit that course to be taken.
20. Secondly, the judge informs the court in the addendum to his judgment that it was irrelevant to his decision whichever version of the letter was adduced in evidence. The addition of that addendum to his judgment was perhaps an unorthodox step for the judge to take, but, in the odd circumstances of this case, it was not only understandable but, in my judgement, extremely useful for him to do that. Mr Percival of course did not suggest that what was set out in the addendum was anything other than the judge's actual and considered opinion in the light of his experience of the case. Mr Percival was, in effect, reduced to saying that that view was not open to the judge in view of what had been said by Dr Milner in the second version of her letter.
21. I am quite unable to agree. One has to bear in mind the judge's profound concern about the state of the medical evidence and its contemporaneity; his view of the account he had been given by the plaintiff in his evidence; and the relevance of the plaintiff's employment and other history, which the judge went into in considerable detail. In that context it was entirely open to the judge to take the view that he did about the second version of Dr Milner's letter when it was eventually produced. Even if the first ground of appeal had any validity - and I have indicated it does not - it would be irrelevant to this case.
22. I would therefore dispose of this appeal in the way that my Lord proposes.
Order: Appeal dismissed with the costs