England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL (Handed down at Nottingham Crown Court)
		30th June 2000.

Mr Justice Morland:

JUDGMENT
1. The Claimant, Mrs Cornelius, has many admirable qualities and achievements. During her life she has surmounted difficulties and recovered from set-backs. I fear that her success in this litigation will be pyrrhic. On the 29th September 1995 a legal wrong was done to her when the Defendant, Dr de Taranto, sent copies of a medico-legal report, which she had commissioned and paid for, without permission to her General Practitioner, Dr Patel, and to a Consultant Psychiatrist. The report contained defamatory and confidential material hurtful to the Claimant. To the fury of the Claimant and despite her persistent efforts the report has become so far irretrievably part of her National Health Service records. She has pursued the litigation with unbending determination. At stages she has had to prosecute her claim as a litigant in person. It is a manifestation of her psychological make-up that her determination to right the wrongs, as she sees them, done to her has become obsessional with the result that she approaches many aspects of the case with a lack of balance, realism and objectivity. Her obsessional attitude makes it difficult for her to distinguish between right and wrong and truth and falsehood. She is unable to accept in fairness to the Defendant that her mistake was well-meaning and not malevolent.
2. The Claimant in other proceedings is pursuing claims against Dr Patel and E. Edwards, Son & Noice, their employee Mr Turner, her solicitors, who arranged for the medico-legal report to be obtained from the Defendant. The status of Mr Turner, whether an admitted Solicitor or a legal executive, is not clear from the evidence. The Claimant's lack of confidence in Mr Turner and her state of wrath at the contents of the report and with Mr Turner is illustrated in her letter dated the 10th of October 1995 (Bundle 4 - pages 151-154). I have no knowledge of the issues raised in these other proceedings and therefore they play no part in this judgment. The Claimant's long letter of complaint to E. Edwards, Son & Noice is at Bundle 4 pages 184-208.
3. The Claimant has also made complaint to the Solicitors Complaints Bureau (see Bundle 4 pages 266-280), and the Royal Free Hampstead NHS Trust (see Bundle 4 page 296). She has through her Solicitors been in correspondence with the General Medical Council as recently as April 2000 in an attempt to retrieve copies of the medico-legal report (see Bundle 4 470-471).
The Issues at the Trial.
4. 1. The defamatory meanings or messages conveyed in the medico-legal report.

2. The extent and nature of publication

3. The defence of justification

4. The application of Section 5 of the Defamation Act 1952.

5. Express or implied consent or lack of consent to publication.

6. Informed consent or lack of consent to referral to a consultant psychiatrist.

7. Damages for Defamation.

8. The application of Pamplin .v. Express Newspapers [1988] 1 W.L.R. 116.

9. The application of Kelly .v. Sherlock [1866] 1.Q.B. 686

10. Breach of the implied contractual duty of confidentiality.

11. Damages for breach of confidence including injury to feelings.

The Factual Background.
5. The Claimant was born on the 8th October 1945. She lived with her family in Liverpool. Her father died when she was seven years old. Her mother remarried, when she was eleven years old, a much older man who was in the Merchant Navy. Her and her younger sister did not have an entirely satisfactory relationship with their step-father who died of throat cancer in April 1995 aged 87. Her mother, who is now an octogenarian, remains well and continues to live in Liverpool.
6. The Claimant married her first husband when she was aged 21. She had already had one son by him and two further sons were to follow. Unfortunately by 1971 her first husband was diagnosed as a schizophrenic. The Claimant and he separated and were eventually divorced although as I understood it some contact between the two of them still subsists. It seems that her first husband remains in need of care and protection. I have little doubt that the Claimant's experiences in relation to her first husband have coloured her attitude to psychiatrists.
7. She met her second husband, Mr Cornelius, in 1973. They lived together in Liverpool until 1989. Their relationship had its ups and downs. Mr Cornelius had artistic and literary talents. He wrote books about Toxteth and the Toxteth Riots which apparently resulted in disapproval from both left and right. However he was not a good manager of finances. He trained to become an art teacher.
8. In my judgment it was clear to me when observing both the Claimant and Mr Cornelius throughout the trial that he has a weaker personality than his wife. When he was giving his evidence the Claimant stared at him intently to ensure as I find that he stuck to the party line.
9. When her sons become teenagers, the Claimant went to Liverpool Polytechnic and obtained a 2(1) Honours degree in Social Studies. She then went to Birmingham and obtained a teaching diploma. She returned to Liverpool and did various "Supply" teaching jobs at a fairly high level.
10. In 1989 the Claimant and Mr Cornelius moved to London in the hope of bettering their teaching prospects. The move did not achieve the hoped for success.
11. Mr Cornelius suffers from spina bifida which substantially affects the speed of his mobility. He was unlawfully dismissed from his teaching post (See Bundle 4 p.36 p.65 and p.298-p.300). That was in 1995. In the same period the Claimant was suffering from traumatic experiences at her school, The Sydney Russell School. She was being asked to teach children below her academic qualifications. Discipline in the school was lax and there was financial mismanagement. The Head Teacher was weak and the Claimant's Head of Department domineering and unreliable. Eventually both were given early "retirement". (See Bundle 4. p.30 - p.37). The Claimant was finding the situation stressful (See Bundle 4 p.46-p.48), and the Head Teacher's reply (Bundle 4 p.50).
12. It was in these circumstances that the Claimant consulted Mr Turner. She wished to make a claim for constructive dismissal. Mr Turner advised against this and advocated a claim for personal injuries (See Bundle 4. p.38-p.42 in particular page 39).
13. On the 14th June 1995 Mr Turner wrote to the Claimant stating:-

"The crucial point in relation to a proposed personal injury action would be an appropriately qualified experts report confirming that the cause of your current stress related illnesses is work related"

(Bundle 4 p.43). with that letter he enclosed a medical consent form.

14. The "Medical Authority Form" (Bundle 4. p.53) provided "Forms of Consent" limiting disclosure of the Claimant's G.P. and Hospital records to her Solicitors. This was stressed in her Solicitors' letter to her G.P. Dr Patel, when requesting a medical report. They wrote (Bundle 4 p.58):-

"Please find attached to this letter a medical authority form authorising release of our Client's medical details to this firm"

15. On the 24th July 1995 the Claimant received from the Head of Education Management Support of the Borough of Barking and Dagenham the letter in Bundle 4 at page 66 with enclosed explanatory notes which no doubt coloured her attitude when the Defendant submitted her medico-legal report. There was set out the following

"Under the terms of the Access to Medical Reports Act, 1988:-

(a) You have the right to withhold your consent for the Occupation Health Service (OHS) to apply to your family doctor or hospital specialist for medical information.

(b) If you give your consent and state that you wish to see the report before it is sent to the OHS you will have 21 days, from the date of the OHS letter notifying you that a medical report has been requested, in which to ask your family doctor or hospital specialist to let you see the report.

(c) Your family doctor or hospital specialist will tell you if you cannot see any part of the report for professional medical reasons.

(d) If you are given access to your report your family doctor or hospital specialist will not send it to the OHS until you give your consent.

(e) If you regard any information in the medical report as incorrect or misleading, you can ask in writing for it to be amended. (Please note: if your family doctor or hospital specialist does not accept that the information is incorrect or misleading, they are not required to make any amendment: but in these cases your family doctor hospital specialist will invite you to prepare a written statement on the disputed information which will be attached to the medical report when it is sent to the OHS).

(f) Subject to the provisions of the Act, you have a right to see information about your medical condition for up to 6 months after it has been sent to the OHS.

(g) If your family doctor or hospital specialist gives you a copy of the medical report at your request, they may charge you a reasonable fee to cover the cost of supplying it."

16. On the 28th July 1995 Dr Patel submitted his report (Bundle 4 p.70). He concluded his report with these words:-

"I take note of the fact that you would like to know as to what extent any ailments have caused or exacerbated by work, but unfortunately I am a General Practitioner and not an Occupational Physician and hence I am unable to provide the information"

17. Understandably Mr Turner took the view that it was necessary to obtain a psychiatric report on the Claimant in order to assess the viability of any personal injury claim.
18. There is a revealing Solicitors' attendance note (Bundle 4 p.72):-

"Mr C states reluctance re Psych. Report as this might alarm Mrs C"

19. Thus it came about that the Defendant was instructed to prepare a medico-legal report. I unhesitatingly accept her evidence that she has never met Mr Turner and their sole contact by telephone or correspondence was in relation to the preparation of medico-legal reports on a few occasions.
20. He wrote to the Defendant on the 2nd August 1995 (Bundle 4 p.73) raising the question of the preservation of her confidentiality.
21. On the 7th August 1995 Mr Turner wrote to the Claimant enclosing a consent form required by the Defendant giving her permission to have access to the Claimant's medical and psychiatric records in particular. (Bundle 4. p.80-81). The Claimant never signed the consent form and much of the Claimant's anger against the Defendant has been engendered because the Defendant obtained copies of her medical records without her permission. This is symptomatic of the Claimant's inability to look at the situation with balance and objectivity. Without access to the medical records the Defendant could not provide a worthwhile medico-legal report.
22. On the 30th August 1995 the Claimant with her husband had the interview with the Defendant at the Royal Free Hospital which was the first step in preparing the report. The Claimant was already in a state of some perturbation and suspicion because on the consent form which she had refused to sign the Defendant was described as "of Camlet Lodge Regional Secure Unit".
23. In 1995 the Defendant was an experienced Senior Registrar in Forensic Psychiatry under the supervision of Dr Kennedy, a Consultant. She herself is now a Consultant, still based at Camlet Lodge, the Forensic Psychiatric H.Q. She was a very impressive witness who answered questions fairly, professionally and with dignity. In general where her evidence conflicts with that of the Claimant and her husband I accept her evidence. I utterly reject any suggestions that she has been deliberately dishonest, guilty of concoction of evidence or party to any plot with Mr Turner to have the Claimant "sectioned" so as to gain control of the Claimant's property.
24. A Transcription of the Defendant's notes made in the presence of the Claimant and her husband is in Bundle 2 pages 95-107.
25. By the end of the interview the Defendant was in a hurry because of family commitments. Although I have no doubt that she did discuss a therapeutic referral, she made no note of the discussion nor of the fact, if it be correct, that the Claimant had given consent albeit reluctantly. In my judgment the Defendant now honestly believes that the Claimant gave consent because as she put it in her oral evidence "I am clear I couldn't have made a referral without consent". The Defendant made no note of the discussion about referral because, she said, she was concentrating on talking directly to the Claimant and her husband. It may well be as the Defendant indicated that Mr Cornelius supported her in her attempts to persuade the Claimant to consent to referral. In evidence the Defendant accepted that she had no direct consent for transmission of the medico-legal report on referral of the Claimant but said that she said to the Claimant and her husband that she would send all the details. In my judgment the probable truth of the matter is that the Defendant, having a genuine and justifiable opinion that the Claimant was in urgent need of psychiatric treatment, had some hope that the Claimant despite her reluctance to consent would attend an appointment if arranged for her in view of her husband's helpful attitude. The Defendant's later perusal of the medical records would have confirmed her opinion that the Claimant was in need of urgent psychiatric treatment. But if the Claimant wished to soldier on without psychiatric help, as she has managed to do and continue teaching, it was not for the Defendant to arrogate to herself the decision. Moreover she was not her doctor.
26. The following documents are consistent with my conclusion:-
27. The Defendant's letter to Dr Patel dated the 5th September 1995 (Bundle 4 p.99) where despite the interview having taken place only a week earlier she makes no mention of the fact that she is arranging a psychiatric referral and the Claimant has consented to it.
28. The Defendant's letter of the 14th September 1995 (Bundle 4 p.101) to the Consultant Psychiatrist at Goodmayes Hospital where she writes:-

"Although she seemed reluctant to seek psychiatric help I strongly encouraged her to do so and her husband said he would reinforce this"

In my judgment this phraseology is inconsistent with consent albeit reluctant.

29. Similarly the phraseology of the third paragraph of her letter dated wrongly 15 August (Bundle 4 p.103) to the Claimant's Solicitors.
30. The Claimant's long letter to her Solicitors dated the 23rd September 1995 (Bundle 4 p.110 in particular p.111,112,113,117,118 and 120).
31. The Defendant's letter to Dr Patel (Bundle 4 p.123) dated the 29th September 1995, her covering letter (p.124) and the report itself (p.125-134) and her further letter (p.135) make no mention of the Claimant consenting to referral.
32. The Defendant's letter dated the 11th October 1995 to the Claimant's Solicitors (p.156 and 157) speaks of recommendation for further treatment not consent to referral. Again this is the position in her further letter to Goodmayes Hospital on the 13th October 1995 (p.161) and her letter to Dr Patel of the 16th October 1995 (p.166).
33. The Claimant's reaction in a letter to a hospital secretary of the 11th October 1995 (p.158) is inconsistent with consent.
34. It was not until the 1st February 1996 when the Defendant wrote to the Medical Protection Society that "both she and her husband reluctantly agreed that she would see a psychiatrist if I referred her" that actual consent as opposed to reluctant to consent was asserted.
35. Many entries in the notes the Claimant and her husband said in evidence were not said at the interview. In particular with regard to the entry on page 99 "never sought psychiatric help. No psychologist," the Claimant denied that she was asked if she had sought psychiatric help at any time. I have no doubt whatever she was asked some such question and lied deliberately to the Defendant in saying that she had not. I am also sure that she deliberately lied to me in her denial of being asked the obvious and essential question. The Defendant said in evidence that it was a basic first question that she asked after the Claimant had spoken at length about her concerns.
36. Crucial factual questions arise as to what happened at the end of the interview. Did the Claimant agree to referral to a Consultant Psychiatrist for at least therapeutic assessment? Did the Claimant give consent to the medico-legal report, which was not yet in existence and which was to be based substantially on her G.P. records, to which she had not consented the Defendant having access, being sent to her G.P. or the Consultant Psychiatrist. Having heard and considered the oral evidence in particular of the Defendant in the light of contemporary or near-contemporary correspondence my unequivocal conclusion is that the answers to both questions is NO.
37. The interview started off on the wrong foot. The Claimant was annoyed and upset for having been kept waiting for about an hour in unpleasant surroundings especially as she was paying for the Defendants' services. The Defendant was running late with her appointments. Her previous patient had become very distressed towards the end of her appointment. The Claimant had come with her agenda and her bundle of documents, either Bundle 4 pages 381-407 or 430-464. Instead according to the Claimant the Defendant had taken down and noted what she needed according to her own set agenda.
Defamatory Meaning.
38. The words complained of, being excerpts from the medico-legal report, are set out in paragraph 15 of the Statement of Claim and the pleaded defamatory meanings in paragraph 16 (Bundle 1 - pages 9 and 10).
39. Sitting without a jury it is my responsibility to decide what actual defamatory meanings the words complained bore applying the guidelines laid down by the Court of Appeal in Skuse .v. Granada Television [1996] EMLR 278 per Sir Thomas Bingham M.R. 285-287.
40. In my judgment the words complained of convey three separate and distinct defamatory messages about the Claimant.

1. That at the age of 19 she had broken into and stolen drugs from a chemist's shop.

2. That when interviewed by the Defendant she had deliberately lied when denying any contact with psychiatric services.

3. That because of her current mental state she was unable to face the problems of her life in a balanced and fully rational way.

41. In deciding the actual defamatory meanings I have to put myself in the position of not the ordinary reader who is a member of the public at large but a reader within the health service in its broadest sense not only psychiatrists, doctors and qualified nurses but also nursing auxiliaries, hospital administrators, clerical staff and medical receptionists.
42. With regard to the third defamatory meaning psychiatrists, doctors and qualified nurses would not because of it think less well of the Claimant. However nursing auxiliaries, hospital administrators, clerical staff and medical receptionists probably might do so and behave towards her differently because of it.
Publication.
43. Publication has been very limited in extent. In the first instance to Dr Patel and to the Consultant Psychiatrist at Goodmayes Hospital, Dr Reddy. From these initial publications, as should have been foreseeable to the Defendant, copies of the report became imbedded in the Claimant's G.P. records and hospital records there to be read by such doctors that she consulted or who attended her, and by their support staff. The report is lodged in the central records of Newham General Hospital and was read by Dr Packe when the Claimant was a patient at St Andrews hospital (Bundle 4 pages 214-215).
The Defence of Justification.
44. Until a couple of days into the trial the Defendants had not abandoned the Defence of Justification in respect of the first Defamatory meaning. It had appeared in her report as the Defendant cordially accepted in evidence because she had misconstrued the letter of the 20th March 1964 in the G.P. notes (Bundle 3 p.37). The Defendants stance is explained by the fact that the Defendants' Solicitors' Liverpool agents did not examine the Magistrates Courts records as carefully as they should have done. The facts were that two young men were charged with breaking into a chemist's shop and stealing a number of items including drugs. The Claimant, then aged 18, and another girl of the same age were charged with feloniously receiving the stolen items. On the 3rd January 1964 before the Stipendiary Magistrate the charge of receiving was withdrawn and the Claimant pleaded Guilty to "not being a duly authorised person had in her possession 2 ampoules morphine, drugs to which part 3 of the Dangerous Drugs Act 1951 applied". On the 17th January 1964 the Stipendiary sentenced the Claimant to 2 years probation (Bundle 4 p.465-9). Therefore as to the first meaning the plea of justification fails.
45. With respect to the second defamatory meaning in my judgment the Defendant has established the truth of this charge. I unhesitatingly accept the Defendant's evidence as to the general tenor of her interview of the Claimant. I find that the Claimant deliberately lied in saying that the had never sought psychiatric help nor had contact with psychiatrists or psychologists. I find that the Claimant has deliberately lied in her evidence to me that she had never been prescribed tranquillisers or anti-depressants. The entries in her clinical records by different doctors over very many years are too numerous and consistent for any other findings to be valid.
46. The clinical records available at the trial and those present in the bundle of such records in 1998 differed markedly from the records considered and noted by the Defendant when she considered the records in September 1995 preparatory to giving the medico-legal report. There seems to be a degree of eclecticism with regard to the missing documents. The Claimant has denied abstracting any original documents. I made no finding as to how significant documents became missing. I accept as true the paragraph 9 of the Defendant's affidavit dated the 2nd November 1998 (Bundle 1 p.181-183) and as accurate her summary of the G.P. records (Bundle 1 p.187-194) and her entries relating to 1977 and 1978 in her report (Bundle 4 p.127).
47. It is not necessary to burden this judgment with the details of psychological, psychiatric and emotional problems and therapeutic prescriptions to be found in the records. Suffice it to say that the records reveal an overwhelming case of such problems. That overwhelming case is not to be doubted because in particular instances minor mistakes may have been made by the recording doctor. Psychiatrically significant entries in the notes are listed in the document entitled "General Practitioner Notes seen by Dr de Taranto in 1995 correlated with General Practitioner Notes provided by Mrs Cornelius in 1998.
48. I utterly reject assertions by the Claimant that the Defendant was guilty of fabrication or distortion or that her medical records were distorted or fabricated or as she put it in evidence that there was something very wrong.
49. With respect to the third defamatory meaning in my judgment its truth is established by the Claimant's own conduct of the litigation and the unbalanced and unreasonable assertions and suggestions that she has made against the Defendant which are referred to elsewhere in this judgment. Even if the third defamatory meaning was not established as justified, it certainly would be partially justified to extent to make any award to damages to vanish almost to nothing (see Pamplin .v. Express Newspapers [1988] 1 W.L.R. 116 per Neill L.J. at p. 120D).
Section 5 of the Defamation Act 1952
50. During final speeches I allowed the Defendant to rely upon Section 5 although unusually not pleaded in the Defence. Thus this case is distinguishable from Moore .v. News of the World [1972] 1Q.B. 441 in which Lord Denning M.R. said at page 448D:-

"Section 5 of the Defamation Act 1952. It says:

"In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges"

That is a very complicated section, but it means that a Defendant is not to fail simply because he cannot prove every single thing in the libel to be true. If he proves the greater part of it to be true, theneven though there is a smaller part not proved, nevertheless the Defendant will win as long as the part not proved does not do the Plaintiff much more harm."

51. In my judgment interpreting Section 5 as suggested by Lord Denning my conclusion is that the Defendant should win on the defence of justification because the words not proved to be true, the untrue charge that the Claimant was guilty of shop-breaking and stealing drugs when she was allegedly 19 years old, does not do the Claimant much more harm than the distinct charges, two and three, proved to be true. In reaching this conclusion I have regard to the antiquity of the alleged conviction and its seriousness on the one hand and on the other and the seriousness and contemporaneity of the charges proved to be true and the nature of the publishees.
Consent
52. Consent as an issue in this case has a number of facets; consent to publication of defamatory statements of fact about the Claimant; consent to perusal of the Claimant's medical records by the Defendant preparatory to the making of her medico-legal report; consent to the publication of the Claimant to her G.P. and to a Consultant Psychiatrist for therapeutic purposes.
53. In my judgment the Claimant clearly gave no express or implied consent to the general publication of defamatory statements about herself.
54. Although I am satisfied that the Claimant gave no consent express or implied to the Defendant to peruse her medical records, because, as I find, the Claimant was fearful, embarrassed and ashamed as to what they might reveal and be harmful to her claim against the education authority, no valid medico-legal report could be made by the Defendant unless she perused and considered the Claimant's medical records. The Claimant, an intelligent and educated woman, must have realised this. In my judgment no damages can be recoverable in breach of contract in respect of the Defendant's unauthorised perusal of the medical records.
55. However the absence of authorisation should have put the Defendant on guard. She had sought written consent and the Claimant had declined to give it. The Defendant had to be careful as to what use she made of the confidential material enclosed in the Claimant's medical records and to whom she divulged it. The very fact, that the Defendant concluded, rightly in my judgment, from perusal of the medical records that the Claimant had lied to her in interview, reinforced that requirement of upholding confidentiality.
56. In my judgment the only publication to which the Claimant consented was to her own Solicitors either expressly or impliedly.
57. Even assuming that the Claimant had consented to her referral as a patient to her G.P. or a Consultant Psychiatrist I am entirely satisfied that the Claimant never did nor never would have consented to the medico-legal report being sent to her G.P. or a Consultant Psychiatrist. The Defendant never asked the Claimant for her comments on the report, never showed it to her and without her consent sent out copies to her G.P. and the Consultant Psychiatrist. In my judgment all that the Defendant needed to do on a therapeutic referral was to state that she had interviewed the Claimant and perused her medical records and had came to the conclusion that she was in urgent need of psychiatric treatment because she was suffering from an episode of agitated depression (See Bundle 4. p.133-134).
58. A matter of complaint by the Claimant is that the Defendant discussed her case with the Defendant's supervising consultant, Dr Kennedy. In my judgment the Defendant acted entirely properly as did Dr Kennedy in having this discussion. Having heard the evidence of both the Defendant and Dr Kennedy on this issue I find that the discussion took place before the Defendant wrote her report and that Dr Kennedy did not read it. This is consistent with the Defendant's contemporary note which comes at the end of the contemporary interview notes (Bundle 1 - p. 139) which I transcribe as follows:-

"Not good relations with G.P."

"Wouldn't go to referral as couldn't take time off"

"Won't take sick leave despite advice".

"Discussion with H.G.K.

N.B. to get chronology. N.B. G.P. Records - tick have requested.

Can only comment on Psychiatric state.

Consider MHA Section 94 (Competence in own affairs)

N.B. Can't really proceed without psychiatric help."

59. This note is of crucial importance both on the issue of whether the Claimant consented to referral and also transmission of the yet unwritten medico-legal report to G.P. and Consultant Psychiatrist. In my judgment it is inconsistent with the Defendant's case that the Claimant agreed to referral and more importantly transmission of the report to G.P. and Consultant Psychiatric.
Damages for Defamation.
60. Even if I had come to the conclusions that the Defendant had not justified meanings (2) and (3) or that Section 5 should not apply, damages would have been minimal having regard to Pamplin .v. Express Newspapers [1988] 1 W.L.R. 116 ("partial justification") and Kelly .v. Sherlock [1866] 1Q.B. 686 ("the claimant's intemperate conduct towards the Defendant").
Breach of the Implied Contractual Duty of Confidentiality.
61. In this case there was a clear contract between the Claimant and the Defendant. In consideration of the sum of £630 payable by the Claimant the Defendant was to provide a medico-legal report. In my judgement there was an undoubted duty of confidentiality in respect of the medico-legal report, its contents, and the information about the Claimant's medical history and private life obtained from her in interview and from her medical records. This is not a case where it can reasonably be argued that there was a duty to override the duty of confidentiality because the Claimant was facing a condition immediately life-threatening to herself or presented a danger to others. Even if the Claimant had consented to therapeutic referral which in my judgment was not the case, it was not necessary to transmit the medico-legal report to the G.P. or Consultant Psychiatrist. Before doing so the Defendant should have obtained the Claimant's express consent preferably in writing.
62. My conclusions are consistent with the documents consisting of 264 pages in Bundle 5 dealing with confidentiality and the medical profession. I shall not overburden this already over lengthy judgment by citing excerpts. I shall merely give page numbers of passages which I particularly considered in Bundle 5 - pages 1,6,20,40,41,53,54,55,64,65,66,70,71,72,105,110,113,141,142,143,144,148,149 and 150.
63. My conclusions are also consistent with the written and oral evidence of the two experts Dr Fisher called by the Claimant, and Dr Taylor called by the Defendant. I accept Dr Fisher's statement:-

"If Dr de Taranto referred Mrs Cornelius for treatment and disclosed her medical report to other health professionals without obtaining Mrs Cornelius's informed consent as it alleged by Mrs Cornelius I consider this to be entirely inappropriate."

Damages for Breach of Confidence. (Including damages for injury to feelings)
64. Under article 8 of the European Convention for the protection of Human Rights "everyone has the right to respect for his private and family life" and there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society for the protection of health".
65. In my judgment it would be a hollow protection of that right if in a particular case in breach of confidence without consent details of the confider's private and family life were disclosed by the confidant to others and the only remedy that the law of England allowed was nominal damages. In this case an injunction or order for delivery up of all copies of the medico-legal report against the Defendant will be of little use to the Claimant. The damage has been done. The details of the Claimant's private and family life are within the archives of the National Health Service and she has been unable to retrieve them.
66. In cases of commercial or business breach of confidence the powers of the Court are not barren. Such remedies as injunction, delivery-up, account of profits and damages may be available (see Chapter X of Toulson on Confidentiality 1996); similarly in the case of personal confidences exploited for profit or peddled to the media (see Chapter VI of Toulson at page 72).
67. The stuttering development of this area of the law is described in Macgregor on Damages (16th edition - 1997) at paragraphs 98 to 104 when considering whether damages are recoverable for mental distress in breach of contract cases. The author's conclusion, after stating that Bingham L.J. had usefully summed up the present position in Watts .v. Morrow [1991] 4 AER 937 at page 959 to page 960C, was that the rule in Addis .v. Gramophone Co [1909] AC 488 "prohibiting damages for mental distress therefore still stands and the inroads upon it have in the event proved not to be severe. It may be that what has just been said requires a degree of qualification in the light of the decision of the House of Lords in Ruxley Electronics .v. Forsyth" [1996] AC 344 (See in particular per Lord Mustill at page 360D and per Lord Lloyd at page 374)".
68. In the present case in my judgment recovery of damages for mental distress caused by breach of confidence, when no other substantial remedy is available, would not be inimical to "considerations of policy" but indeed to refuse such recovery would illustrate that something was wrong with the law. Although "the object of the contract" was the provision of a medico-legal report, that object could not be achieved without the Defendant's examination and assessment of confidential material relating to the Claimants private and family life. The duty of confidence was an essential indeed fundamental ingredient of contractual relationship between the Claimant and the Defendant which she breached.
69. My conclusion that damages for mental distress are recoverable in contract when caused by breach of the obligation of confidence does not accord with the view express by Scott J. in W .v. Edgell [1990] 1 Ch 359 at page 398A-G :-

"Further, it is, I think, open to question whether shock and distress caused by the unauthorised disclosure of confidential information can, in any event, properly be reflected in an award of damages.

In Bliss .v. South East Thames Regional Health Authority [1987] I.C.R. 700, 717-718, Dillon L.J. said:

"The general rule laid down by the House of Lords in Addis .v. Gramophone Co Ltd [1909] AC 488 is that damages fall to be assessed for breach of contract rather than in tort it is not permissible to award general damages for frustration, mental distress, injured feelings or annoyance occasioned by the breach. Modern thinking tends to be that the amount of damages recoverable for a wrong should be the same whether the cause of action is laid in contract or in tort. But in the Addis case Lord Loreburn regarded the rule that damages for injured feelings cannot be recovered in contract for wrongful dismissal as too inveterate to be altered, and Lord James of Hereford supported his concurrence in the speech of Lord Loreburn by reference to his own experience at the Bar.

"There are exceptions now recognised where the contract which has been broken was itself a contract to provide peace of mind or freedom from distress: see Jarvis .v. Swan Tours [1973] QB 233 and Heywood .v. Weller [1976] QB 446. Those decisions, do not, however cover this present case.

"in Cox .v. Philips Industries Ltd [1976] I.C.R. 138 Lawson J. took the view that damages for distress, vexation and frustration, including consequent ill health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress, etc. For my part I do not think that the general approach is open to this court unless and until the House of Lords has reconsidered its decision in the Addis case."

This Court of Appeal authority seems to me to preclude W. from recovering damages (save nominal damages) to the extent that his claim is based on breach of an implied contractual term. I do not see any reason, on this point, why equity should not follow the law.

Accordingly , in my judgment, W. would not, even if I had found Dr. Egdell to be liable, have been entitled to damages. He would have had to be content with a declaration and an injunction"

70. Mr Seabrook for the Defendant relied upon a passage in the speech of Lord Keith of Kinkel in A-G .v. Guardian Newspapers (No.2) [1990] 1.A.C. 109 for his proposition in that the Claimant was only entitled to nominal damages because she had suffered no economic detriment. Lord Keith said at pages 255D-256C :-

"The Crown's case upon all the issues which arise invokes the law about confidentiality. So it is convenient to start by considering the nature and scope of that law. The law has long recognised that an obligation of confidence can arise out of particular relationships. Examples are the relationships of doctor and patient, priest and penitent, solicitor and client, banker and customer. The obligation may be imposed by an express or implied term in a contact but it may also exist independently of any contract on the basis of an independent equitable principle of confidence: Saltman Engineering Co. .v. Campbell Engineering Co. Ltd. [1948] 65 RPC. 203. It is worthy of some examination whether or not detriment to the confider of confidential information is an essential ingredient of his cause of action in seeking to restrain by injunction a breach of confidence. Presumably that may be so as regards an action for damages in respect of a past breach of confidence. If the confider has suffered no detriment thereby he can hardly be in a position to recover compensatory damages. However, the true view maybe that he would be entitled to nominal damages. Most of the cases have arisen in circumstances where there has been a threatened or actual breach of confidence by an employee or ex-employee of the plaintiff, or where information about the plaintiff's business affairs has been given in confidence to someone who has proceeded to exploit it for his own benefit: an example of the latter type of case is Seager .v. Copydex Ltd [1967] 1W.L.R. 923. In such cases the detriment to the confider is clear. In other cases there may be no financial detriment to the confider, since the breach of confidence involves no more than an invasion of personal privacy. Thus in Duchess of Argyll .v. Duke of Argyll [1967] Ch. 302 an injunction was granted against the revelation of marital confidences. The right to personal privacy is clearly one which the law should in this field seek to protect. If a profit has been made through the revelation in breach of confidence of details of a person's private life it is appropriate that the profit should be accounted for to that person. Further, as a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself. Information about a person's private and personal affairs may be of a nature which shows him up in a favourable light and would by no means expose him to criticism. The anonymous donor of a very large sum to a very worthy cause has his own reasons for wishing to remain anonymous, which are unlikely to be discreditable. He should surely be in a position to restrain disclosure in breach of confidence of his identity in connection with the donation. So I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to persons whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way."

71. The detriment to the Claimant occurred because the Defendant transmitted the medico-legal report to Dr Patel and Goodmayes Hospital in breach of contract and breach of confidence. It matters not that no use detrimental to the Claimant was made of this report (See per Rose J. in X.v.Y [1988] 2 A.E.R. 648 at page 657G-J).
72. Toulson at page 126 says:-

"Professor Cornish has commented:

"There remains the question as yet unexplored in the case-law, whether damages for injury to feelings are available for breach of confidence as they are for defamation and copyright infringement. All that can usefully be said is this. Breach of confidence is slowly becoming one of the ways in which the law accords protection to privacy and those aspects of personal reputation that are associated with it. Infringement of copyright and defamation fulfil the same function in ways that are differently limited. But since both allow damages for injured feelings, it would seem quixotic to bar this form of monetary compensation from the third field, for the sake of yet another historical point"

It may be argued that, in a case where a duty of confidentiality exists to protect personal privacy, its object is to protect the feelings of the confider, and therefore it would be in accordance with principle to allow damages for injury to feelings caused by breach of that duty. But whether the courts will adopt that approach remains to be seen"

73. I appreciate a possible anomaly. Assuming a Claimant proves that she has suffered injury to feelings caused by breach of confidence, he would be entitled as of right in contract to full compensation for that injury without regard to her post-breach conduct to the confidant, however wounding that conduct may have been to the confidant but if the Claimant's only remedy was "equitable" damages the position might be otherwise.
74. Mr Seabrook argued that the Claimant did not come to Court with clean hands. It would be inequitable to award her damages having regard to her conduct towards the Defendant against whom she has made grave and groundless allegations for which she has not apologised. The assertion was made that the Defendant and Mr Turner had plotted together to defraud her of her property by having her "sectioned". See also the Claimant's assertions relating to the Defendant's South African origins at pages 19 to 21 of Bundle 2. However in fairness to the Claimant these assertions may be symptoms of her obsessional attitude and her mental make-up and condition.
75. Moreover the conduct of a Claimant in defamation proceedings can result in a reduction of damages (See my judgment in Godfrey .v. Demon Internet dated the 23rd April 1999 and the cases cited therein in particular the dicta of Blackburn J. in Kelly .v. Sherlock [1866] L.R.1.Q.B. 686 at page 698). In my judgment in contract I cannot reduce an award for damages for injury to her feelings caused by the Defendant's breach of confidence. However the Claimant's insensitivity to the feelings of the Defendant may indicate that the injury to her own feelings was not as serious as she made out.
76. My conclusion is that I am entitled to award damages for injury to feelings caused by breach of confidence. Although it is a novel instance of such a remedy, it is in accord with the movement of current legal thinking. My decision is incremental rather than revolutionary.
77. In my assessment of damages I must be careful to ensure that the Claimant is only compensated for the injury to her feelings caused by the Defendant's unauthorised disclosure of the medico-legal report.
78. I have no doubt that the Claimant suffered acute distress and injury to her feelings when on the 10th October 1995 she read the report for the first time (See her letter to Mr Turner - Bundle 4 - pages 151-154). The report contained defamatory matters, inaccuracies, embarrassing details about her private and family life and her medical history. It revealed that her G.P. notes had been sent without her consent to the Defendant who had set out in the report details from the notes and made use of them in reaching her conclusions. This revelation has been a cause of continuing annoyance and anger to the Claimant. In my judgment the probabilities are that she hoped that her civil claim against the Education Authority could be progressed without the revelation of her unhelpful history of psychological problems. This explains in my judgment the bowdlerised bundle of documents which the Claimant presented to the Defendant on the 30th August 1995 (See Bundle 4 pages 381 to 407 and pages 430 to 464). I have no doubt that discovery of what various doctors had written about her over the years caused her immense annoyance. She did not agree with the accuracy of much that doctors had written about her in the past. She was annoyed that the report was sent to Mr Turner without her first having the opportunity of checking and correcting it but the whole purpose of the medico-legal report was so that Mr Turner could consider the viability of the Claimant's claim for personal injuries in the light of the Defendant's independent professional opinion. None of the above matters sound in damages for breach of confidence.
79. The damages that I award for the unauthorised transmission of the medico-legal report causing injury to the Claimant's feelings will be strictly limited to injury to feelings caused by the breach of confidence. The fact that the Defendant was well-intentioned for the Claimant's future health care is irrelevant. It was for the Claimant to decide what details of per private life and family life and medical history were revealed to others. In my judgment the injury to the Claimant's feelings resulting from the breach of confidence was significant but in all the circumstances damages must be modest.
80. In the assessment of damages in this case the nature and detail of the confidential material disclosed, the character of the recipients of the disclosure and the extent of disclosure are material factors in weighing up the true degree of injury to the Claimant's feelings. The psychological make-up of the Claimant known to the Defendant is also relevant in deciding that injury to feelings was foreseeable from the breach of confidence. The very fact that the Claimant did not reveal her true medical history to the Defendant is indicative of how important to the Claimant was its confidentiality and how wounding to her feelings its breach. As early as 29th October 1995, no doubt prompted by Dr Patel's letter to her husband dated the 27th October 1995 (Bundle 4 page 172) the Claimant in her formal complaint to her Solicitors wrote:-

"The report itself should be suppressed and checked that it has not been distributed to other parties"

81. On the 15th November 1995 the Claimant was admitted to St Andrews Hospital Bow which was part of the Newham Healthcare Trust. She was suffering from pneumonia. While a patient she overheard a ward sister explaining to a cadet nurse the procedure for sectioning mentally ill patients and she was puzzled when her consultant chest physician, Dr Packe, said to her "You have been ill for a long, long time". Unknown to her Dr Packe had read the medico-legal report (Bundle 4 pages 214-215).
82. It was on about the 22nd February 1996 that the Claimant with her husband examined her G.P. notes and discovered that the confidential medico-legal report or copies of it were not only with her G.P. notes but also in Hospital records. So began the Claimant's long battle so far unsuccessful to retrieve all copies of the report from the National Health Service system (Bundle 4 pages 226,227,234,235,238 and 244).
83. In my judgment fair and reasonable compensation for the injury to the Claimants feelings caused by the unauthorised disclosure of the confidential information should be the sum of £3000.
84. I reject the claim for £630, the cost of the medico-legal report. The Defendant provided a medico-legal report as contracted for. The Claimant's only remedy is for damages for breach of the implied term of confidentiality.
85. In addition to the sum of £3000 in my judgment the Claimant is entitled to fair and reasonable compensation for the expense incurred by her efforts to retrieve copies of the medico-legal report retained in Health Service records. In my judgment that expense sounds in damages and not costs. I assess that in the sum of £750.
86. The total award of damages will therefore be £3750.