England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EPSOM COUNTY COURT
(His Honour Judge Hull QC)

		Royal Courts of Justice Strand London WC2 Thursday, 18th April 2002

1. LORD JUSTICE POTTER: By this application the applicant, Mr. Thatcher, seeks permission to appeal an order dated 28th June 2001 made by His Honour Judge Hull QC in the Epsom County Court following a judgment in which he awarded the applicant damages of some £20,700, including interest, in his claim for compensation in respect of a back injury suffered while working on communications cables for his employers, Telewest, who were the defendants in the action. The applicant contends that the award is insufficient, principally because it does not include an award of damages in respect of psychological problems which he claims were caused by the accident. He has also made clear to me orally on this application, his submission that, in the light of the evidence of the orthopaedic consultant who was the agreed orthopaedic expert in the case, he should have been awarded a greater sum by way of damages.
2. The applicant also seeks an extension of time to cover his delay in applying for permission. His notice was filed on 26th October 2001. He has explained the circumstances. In my view, they justify an extension so that I will consider the merits of his application.
3. He was born in 1972. He is now 29 but was 25 when the accident occurred. Prior to the accident it appears that he had been a fit and active man. Until 1995 he was an instructor in the local Cadet Force. He left at that time in circumstances where he was also facing or had just faced the break up of a previous relationship which may have had some effect upon him and made him somewhat depressed.
4. On 18th June 1997 he suffered a back injury whilst working for the defendant as a field technician. He was ordered to pull a heavy cable from its conduit. This was work which he had not been trained for and was not part of his duties. Whilst performing a job requiring strength and technique, he pulled hard and felt something go in his back. The circumstances appear from a copy of the accident report and the witness statement from a colleague of the applicant who saw the accident, both of which I have read. After the accident he complained of severe back pain and later shooting pain running down his right leg. The problem was subsequently diagnosed as a slipped disc. It has caused him pain ever since the accident, though more recent attempts at treatment have borne fruit and have much reduced the pain. The injury has affected his ability to carry out heavy work as well as his sex life and has prevented him from keeping up the active lifestyle which he had enjoyed before the accident. His back injury has been assessed by a number of health care professionals since the accident, including Mr. Patterson, the consultant orthopaedic surgeon who first treated him, and to whom I have already referred. Also Mrs Jeetoo, a physiotherapist. All these professionals reached conclusions consistent with those of Mr Patterson, which were that the slipped disc was caused by the accident and not simply due to the fact that the disc was degenerate, and that the treatment that the applicant received was appropriate to the injury. Mr Patterson had recommended remedial surgery but the claimant was nervous of it. His decision not to undergo such surgery was regarded by Mr Patterson as reasonable in the light of the risks. Fortunately, by November 2000 the applicant's back was improved to the level which successful surgery might have achieved in any event.
5. The aspects of the applicant's injury of immediate relevance are that the back injury has since seriously affected his ability to work, and in particular is the cause or principal cause of a state of depression and psychological malaise which he has since suffered. He says that he has become severely depressed and lost confidence in himself. It is clear that he has developed various phobias due to changes in his life caused by the accident. He has since been seen by at least four professionals in connection with psychological difficulties. First, there was a counsellor at his GP's practice for two sessions. From the summary of Mr Thatcher's GP's notes in the expert's report of Dr McGilchrist, the consultant psychiatrist who was also jointly appointed as the expert appropriate to give evidence at the trial, this counsellor appears to have thought that the applicant suffered from psychological problems which pre-dated the accident. I shall come to the views of Dr McGilchrist shortly. Second, there was a Dr Sue Waters, a chartered psychologist, who saw the applicant for over 50 sessions. She initially put all the applicant's problems down to his injury. Later she received information from his GP and it appears a note of a consultation with a Dr Pariente, who indicated that the applicant had some pre-existing psychological problems. In the light of this information she revised her opinion to the extent that she accepted that his condition was not one of post-traumatic stress and considered that he had some pre-existing psychological problems, the nature of which was unclear. However, she still thought that the accident had seriously harmed his mental health and was the effective cause of much of his depressive problems. There was also Dr Pariente, a consultant psychiatrist, probably for a single assessment, who is referred to in a letter from Dr. Waters. Little is known about this consultation, but the letter suggests that he found evidence of some psychological problems ante-dating the accident.
6. As earlier mentioned, the fourth professional and, in my view, the most important so far as this application is concerned, was Dr McGilchrist, a consultant psychiatrist who was jointly instructed in the case. His report is before me. Important aspects of it were quoted at length by the judge in the transcript which is before me. He took the view, as he stated, that the applicant suffers from a generalized anxiety disorder, not post traumatic stress disorder, and that it could not have originated with the accident. He believed that this view was supported by the applicant's medical records, and he appears also, for reasons which I have to say I do not find convincing, to have had severe doubts about Mr Thatcher's account of the accident which he considered to be shot with inconsistencies.
7. So far as the progress of the case was concerned, the applicant issued his claim against Telewest on 28th April 2000, claiming damages for his back injury and psychological problems which he said were caused by Telewest's negligence. By an order of District Judge Enzer the case was assigned to the multi-track and directions on witness statements and expert evidence were given. Evidence was confined to issues of causation, mitigation and quantum. An order was made that the expert evidence on (a) orthopaedics, and (b) psychiatry be given by the report of a single expert in each case to be jointly instructed by the parties, the court considering, once the claim was listed, whether oral evidence would be allowed. Questions on the reports were said to be required within 14 days, with replies within 14 days thereafter. Following the order the parties appointed Mr Patterson and Dr McGilchrist who reported. On 29th March Deputy District Judge Kenny made further directions: (a) that both parties had leave to call Mr Patterson to give evidence; (b) that neither party could ask further questions of Mr Patterson without the agreement of the other party or of the court; and (c) that all witness statements be exchanged by 3rd May 2001. The reason for the direction about permission being required to ask further questions is somewhat obscure. I assume that it means further written questions under CPR 35.6.
8. Mr. Thatcher served witness statements from a substantial number of people, in addition to those mentioned above; his parents, his aunt, his instructors at the Cadet Force he had attended until 1995, and a former employer. The defence served some video evidence of the report of a private investigator relating to observations carried out upon the applicant at a time when he had been employed intermittently by a car hire firm. However, the video evidence was not shown at court. There is no suggestion that anything which it revealed was inconsistent with the account which the applicant had given of the accident and his subsequent efforts, in part successful, to obtain employment, and it does not seem to have been considered as relevant in the judgment of the judge.
9. The trial took place on 26th June by His Honour Judge Hull. At that trial the applicant was represented by a MacKenzie friend, his then girlfriend, Miss Webra, who called both the expert witnesses for cross-examination and conducted the case ably, it would seem, subject to one matter for which she may hardly be blamed, which I shall highlight later in this judgment. The position was that it was necessary for her to appear because, as the applicant has informed me, at some stage prior to the proceedings legal aid had been withdrawn on the basis of an opinion expressed by Mr. Patterson in one of his reports, that the applicant might well have suffered an accident of the kind giving rise to the kind of strain or incident which did in fact occur at any time within six months or so of the time when it did occur. There is a transcript of Mr Patterson's cross-examination with the papers in which he withdrew this opinion in evidence at the trial.
10. The judge found that Mr Thatcher's slipped disc and sciatica were caused by the accident but that his psychological problems were not. The psychological problems instead ante-dated the accident and were symptoms of a personality disorder, namely generalized anxiety disorder, which was explained to the judge by Dr McGilchrist in his report and when giving evidence. The judge concurred with Dr McGilchrist's view that the applicant's account of the injury and its effects contained inconsistencies and was in some respects doubtful.
11. The judge commented on the cross-examination of both experts by Miss Webra. Despite the earlier restrictions upon the oral evidence of the experts imposed by the earlier orders of the District Judges, to which I have referred, that cross-examination took place at some length. However, when Miss Webra put research papers to Mr. Patterson, which he had not had the opportunity to consider in advance, the judge informed him that he need not answer, though in fact it is apparent from the transcript that he did deal with the questions put.
12. It would have been helpful if the transcript of the evidence of Dr McGilchrist could have been before me rather than simply that of Mr Patterson. For reasons which I will explain his evidence seems to me to have been more important to the outcome of this case than the applicant appreciates. The applicant's principal ground, as he explained orally to me, is that in the course of his evidence Mr. Patterson withdrew his assertion about the likely timing of some similar accident had the original accident not occurred, stating instead that the whole matter was riddled with uncertainty and that any such estimate could and should have been of a vaguer nature and on a much longer timescale. The judge however found that the cross-examination of Miss Webra did not cast doubt on the experts' evidence, and it would certainly seem from his judgment that his view of Dr. McGilchrist's evidence was not disturbed in any way.
13. He awarded the applicant a total of just over £20,000, of which £14,000 was for pain and suffering and £5,000 for handicap in the labour market. The rest of the award comprised special damages and interest. He made no award for loss of earnings, save for the award in respect of handicap in the labour market because, upon his view of the evidence, and in particular that of Dr McGilchrist, the applicant's inability to work did not last longer than the period of a year after the accident, during which the applicant had remained in his employment and been paid by the defendants. The judge found that the cause of the applicant's inability to obtain a job therefore was not the injury from his accident but the psychological state in which he found himself. The latter, according to the evidence of Dr McGilchrist accepted by the judge, was the cause of his loss of earnings, to the exclusion of the accident.
14. The following grounds of appeal appear in the appellant's notice. The first two grounds stated were that the refusal by the judge of permission to appeal was futile and petty and the fact that the applicant was a litigant in person was irrelevant. Those do not have substance and in any event have not been pursued before me. It is said that the expert testimony of Mr. Patterson was ignored and that no reasons were given for ignoring it. As has now emerged in the oral submissions of the applicant, that is a reference to Mr. Patterson's withdrawal of his estimate of the time as to which some similar accident might have occurred if the original accident had not taken place.
15. It is also said that the judge did not allow the full issues in the case to be raised, in particular with the psychiatrist, Dr McGilchrist. Also that there were grounds for a mistrial, in that Dr. MrGilchrist admitted never having seen Mr Thatcher's full clinical history and not being able to make a full assessment. It is said he continually contradicted the Government's Fair Practice and Evidence Based Medicine Protocols and that both the judge and Dr. McGilchrist ignored evidence from the claimant's GP, psychologist et cetera, which indicated that he had no previous psychiatric disorder.
16. The following arguments were put in support of the grounds in writing: (a) the judge allowed the defendant's counsel to use scientific research at trial but did not allow the claimant to do so; (b) the judge did not assess sciatica and disc prolapse/protrusion as two separate issues and diseases; (c) the judge failed to take account of the differences between impairment and partial long term disability which may lead to tertiary diseases such as rheumatoid arthritis and that the level of damages award reflected this failure, and (d) the assessment of damages was not a pure question of fact, was wrong and produced an unjustifiably low figure.
17. Let me say at once that, as a result of a careful study of the papers and the manner in which the case is conducted, I have some misgivings about whether, in the end, a proper result was achieved. However, those misgivings are based entirely upon the course which the trial took as a result of the lack of professional representation on the part of the applicant, an apparent failure, prior to trial, to appreciate the difficulty of the problems arising on Dr McGilchrist's evidence, and failure to pursue the possibility of applying for other psychiatric evidence to be called.
18. The points which cause me concern are these. From the judgment it is not clear that the judge paid any attention to the witness statements put in by the applicant in support of his case, in the sense that they are simply not referred to in his judgment. The statements of the applicant's family, Cadet Force superiors and former employer, all except for that of Mr Jones, supported the view that Mr Thatcher was a changed man after the accident, as did the evidence of Dr. Waters, founded on a large number of sessions with him. It has to be acknowledged, however, that there was evidence available from other sources that, prior to the accident, there had been some emotional and depressive problems. By way of example, Mr Jones (tab 16, page 62) and the initial entry in the records of Dr. Sue Waters upon the first consultation with the applicant (tab 22, page 109). Second, it seems that the judge accepted the evidence of Dr McGilchrist in an uncritical manner although, in the witness statement of the applicant, he had pointed out various points of error or challenge on none of which the judge commented. In particular, there appears to have been a mistake made in the applicant's solicitors' original instructions to Dr. McGilchrist to the effect that the accident which took place happened on 9th March 1998, when the applicant's recollection was around the end of May. This, and the fact that the applicant could not remember the precise date of the accident (at the time he did not have access to any medical records to jog his memory) appears to have led Dr McGilchrist to the view that the applicant's account of the accident should be treated with scepticism. This is clear from the outset of his report as well as paragraph 4 of the opinion section. Nonetheless, the general practitioner's notes, which Dr McGilchrist relied upon as support for his view that the applicant's account was dubious, were consistent, although they were sketchy in nature, with the applicant's account of his injury and its timing. It has to be said that the whole tenor of Dr McGilchrist's report is of a somewhat dismissive nature. Another matter of concern is that Dr McGilchrist's opinion seems to have dealt with the matter as a straightforward one, in which (a) the applicant's depressive state and other conditions described could be regarded as having originated prior to the accident, in the sense that he had always had a vulnerable personality of the type described, and (b) the accident was an accident of no real significance in the progress of that condition. His conclusion was:

"Mr. Thatcher suffers from what is commonly known as generalised anxiety disorder. Specifically he has important elements of panic disorder with agoraphobia, obsessive-compulsive disorder, an eating disorder and specific phobias of heights and flying. None of this can be attributed to his accident, and, in my view, his psychological condition would not have been significantly different had the accident never occurred."

19. That was a view which was potentially open to attack on the basis that it was simplistic and that the true situation was that of a psychologically vulnerable claimant, prone to depression, that the vulnerable nature of his personality was in fact exacerbated so that the accident was in substantial measure causative of his failure to get work. Certainly, that view was broadly supported by the unchallenged witness statements of a variety of friends, colleagues and relatives. Unfortunately, these points were not sufficiently taken up, or if they were, they may have been adequately dealt with by Dr McGilchrist in cross-examination. As I say, I have no transcript before me. A further difficulty in the way of any complaint by the applicant in this respect is that the judge heard his evidence and had the opportunity to judge the quality of his evidence and his personality himself. In that respect I will not read at length what the judge said in his judgment, but the relevant passage may be found at page 9, line 13 to line 37.
20. That being so, I am left with the uneasy feeling that, differently handled, particularly in relation to the evidence of Dr McGilchrist, the matter might have turned out differently. There is however no substance in the individual complaints which are raised as to procedure and the ignoring of testimony, save for the single point in relation to Mr. Patterson which I have already mentioned. That point does not seem to me to be a point of substance for this reason. Whether or not a similar injury might have occurred to the applicant's back at some time in the future later than the date on which the accident occurred, the judge put his decision upon the basis of the evidence of Dr McGilchrist and the level of his actual physical disability as described by Mr Patterson. About that, there was no substantial disagreement. The decision rested upon the judge's acceptance of Dr McGilchrist's evidence. In other words, the judge's opinion was that, whatever the state of disability in which the applicant found himself, it was due to pre-existing psychiatric causes and that the accident itself was insufficient in its effects to be treated as an operative cause or to amount to more than a blip in their development. Having heard evidence from the claimant also, the judge stated that it was the psychiatric causes and not the accident at all which were operative in his inability to obtain employment. That is a surprising conclusion, but one open to the judge on the evidence which he heard.
21. As I have tried to explain to the applicant, even where this court may have misgivings about the course of a case and whether justice was truly done in the end, it is not here to correct inadequacies or mis-assessments on the part of legal advisers or others responsible for dealing with a claim on its way to court. This court can only interfere with a decision below if it appears that there was no evidence upon which the judge could reasonably have come to his conclusion, or there is some other flaw in procedure or in the reasoning of the judge which renders his decision either wrong in law or one which cannot be sustained on the evidence before him. Those circumstances do not exist in this case. I see no prospect that the court could be persuaded that they do. As a result, albeit with some misgivings, I must refuse the application for permission to appeal.
Order: Application refused.