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

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th February 2004

Mrs Justice Hallett :

1. The claimant, a litigant in person, is 69 years old, a former army officer and a qualified accountant. He suffers from diabetes and heart problems. On 9th September 2001 the claimant was assaulted by Stephen Whyms an employee of the defendant firm of bookmakers. He claims damages for personal injury, loss of earnings, loss of a watch and slander. His claim was initially limited to £57500.00, but at the beginning of the trial, he applied for permission to amend his particulars of claim as he put it to "remove the limit on the damages claimed", and to claim "damages for aggravated assault", the aggravation being the way in which this litigation has been allegedly conducted by the defendants. I declined to rule on the application until I could understand the reasons for it. In the event it became unnecessary to do so.
2. The assault occurred at the Locarno branch of William Hill in Streatham. Mr Whyms, who is of Afro-Caribbean origin, was employed there as a deputy manager cashier. According to the claimant this was not the first time Mr Whyms had been involved in a violent incident. He is no longer employed by the defendants and did not give evidence before me.
3. There have been two disagreements involving staff at this particular branch of William Hill and Mr Hussein. The first was about non- payment of what Mr Hussein claimed was a winning betting slip. In questioning the defendants' witnesses Mr Hussein put in clear terms that minutes before the assault he and Mr Whyms had argued over the payment of this bet. In his closing submissions to me Mr Hussein said this argument occurred the previous day and did not involve Mr Whyms. In any event, all are agreed that on the afternoon of 9^th September 2001 there was an argument between Mr Whyms and the claimant which led to Mr Whyms' hitting Mr Hussein with a cardboard tube. Part of what happened has been captured on CCTV footage. Unfortunately, the recording does not provide any evidence as to what was said and does not cover the assault itself. Mr Hussein has taken great exception to the recording shown to me. He claims it was deliberately withheld by the defendants for many months and then produced in a form which is inaccurate. Mr Samuels, a senior employee of William Hill in charge of security and given the task of investigating this matter, although no video engineer himself, was responsible for recording the video in "real time" rather than in its original jerky 24 hour format. Mr Hussein argues that I should not, therefore, rely upon the apparent timings shown by the video produced by Mr Samuels. I have not done so.
4. Mr Hussein claimed that the incident began when he gave Mr Whyms a £50 note for a £10 bet but received no change. Ms Foster, on behalf of the defendants, argued that the video appears to show Mr Whyms refusing to take a bank note rather than accepting one. I am inclined to agree with her. This is consistent with the defendant's case namely that Mr Whyms was refusing to change a £5 note for cash for the fruit machines. Whatever the cause of the dispute, it is clear from the claimant's body language on the video recording that he became very heated. He did not remain, as he claims and his witness Mrs Ma claims, calm and polite.
5. Mr Hussein admitted that when he was arguing with Mr Whyms at the desk he told Mr Whyms "I do not need you making monkey faces at me. I need my change". He denied saying "fucking monkey faces" as recorded by Mr Samuels in an interview with Mr Hussein on 12^th September 2001. Mr Hussein told me that Mr Whyms kept pulling faces as he tried to get his point across. He denied getting angry and he denied calling Mr Whyms "a fucking monkey" which he conceded would have been a racist remark. I should say that given the claimant accepted the use of the term "monkey" would have been racist, if directed at Mr Whyms, the distinction between calling Mr Whyms "a monkey" and saying he was pulling "monkey faces" is to my mind a fine one. Mr Hussein assured me he would not make a racist comment having been involved in promoting good race relations for many years. He showed me photographs to prove such involvement. Whatever he said undoubtedly upset Mr Whyms and he lost his self control.
6. The tape showed Mr Hussein leaving his desk and moving out of camera range. He was out of sight for the duration of the assault. On any view, the assault was over in less than two minutes. After the assault Mr Hussein reappeared on camera and left the shop. He paced up and down outside. At one stage he gesticulated rudely to Mr Whyms from the door to the shop. There is a dispute as to how long he waited outside the shop. For whatever time he remained outside the shop, I have to say he showed no signs of being shocked, dazed and dizzy as he later told a Consultant Psychiatrist. He looked angry. He still had perched on the back of his head his sunglasses which did not seem to have been dislodged during the assault.
7. As to what happened off camera, it is not disputed that Mr Whyms picked up a cardboard tube containing posters, followed Mr Hussein to the television screen area, stood on a chair and hit Mr Hussein with the tube. The extent of the assault and its effects are, however, very much in dispute. Ms Foster has argued on behalf of the defendants that the claimant is motivated by a grudge against the defendants and is determined to extract a grossly inflated award of damages from them. He has somehow persuaded his witnesses to give evidence confirming his account. The claimant argued that he was assaulted and humiliated by Mr Whyms, that the defendants have behaved very badly in defending his genuine claim, that he has lost considerable earnings as a result of his injuries and he is entitled to a very substantial sum of damages.
8. With that background, I turn to the evidence of the assault. Mr Hussein has given varying accounts. For most of the trial, he claimed to have seen his General Practitioner (GP) Dr Shah on the day of the assault. The only record of that visit and what he is supposed to have said to Dr Shah is a single entry on a GP continuation sheet. It makes no reference to his being hit on the head. Reference is made to "no fracture and no dislocation", an odd reference Ms Foster argued if the GP knew of a head injury. Mr Hussein also spoke to the press and did not mention to them being hit on the head. He told the reporter he had been hit twice. The day after the event, in a letter to the defendants, the claimant said that Mr Whyms had hit him twice with a stick. He does not mention being hit on the head. On the 12^th September Mr Hussein told Mr Samuels that he had been hit on the head, side of the face and on the arms when he put them up to protect himself. He showed Mr Samuels two photographs showing a red mark just on or above Mr Hussein's cheek. At the time of the interview, however, Mr Samuels and his colleague could see no red mark just some "white discolouring-could have been a scratch mark- appeared to be flaky skin". When asked to produce the photographs, Mr Hussein said that he had given them to the police and they had not been returned. No copies have been produced. Mr Hussein told the police that he had been hit twice once on the head and once on the side of the face. He made no mention of his injuries save to say he attended hospital.
9. Asked about his various accounts nearer the time of the assault, Mr Hussein said that they represented his memory of events at that time. He claimed that his memory had improved with the passage of time. Mr Hussein insisted that he had been struck 3 times with a cardboard tube. The cardboard tube was 32" long and weighed 713 grams including 4 posters. Mr Hussein spent a great deal of time during the hearing complaining that in the pleaded defence the defendants referred to a "hollow" tube and in correspondence appeared to be claiming that the tube weighed only 47 grams. He also felt the defendants had misled Dr Fry in their instructions to him as to the nature of the weapon used. This caused him considerable concern. Mr Samuels, their employee, knew or should have known from 12^th September 2001 the correct size and approximate weight of the tube. He argued that this attitude indicates on the part of the defendants a deliberate attempt to mislead him and the court. It is unfortunate that there was ever any dispute as to the size and weight of the weapon used. It remained in the defendants' custody throughout. I am not, however, persuaded that I should infer anything sinister from what I suspect was a genuine mistake and breakdown in communications. In any event the weight and size of the weapon is now agreed and the tube has been produced before me.
10. On 4^th March 2003 the claimant told Dr Fry a Consultant Psychiatrist instructed on behalf of the defendants that he had suffered 2 blows, one landing in the centre of his head coming down from above and one to the left cheek which Mr Hussein attempted to block with his left (sic) arm.
11. In evidence before me, the claimant's first account was that he had been hit twice to the head and once to the side of the face. His sunglasses, which were perched on the back of his head, were not affected. Later, in response to the suggestion from Ms Foster that he could not have received a blow to the head as he claimed, if the sunglasses remained in place, he added that they may have come off and he had replaced them. He could not remember. According to my notes he also changed his evidence as to the nature of the blows saying later in his evidence that he had been hit twice to the head and once to the upper right arm having put the right arm up to protect his head. The blow landed near his right wrist and then the tube somehow fell down onto his face scratching it. He claimed that he lost his watch in the process, a watch which was fastened by a buckle and normally worn on his left wrist. When challenged as to how a blow to his right arm led to the watch falling off, he said that unusually he was wearing the watch on his right wrist that day. This was because he had problems with his left wrist. As far as the watch is concerned, he said he bought it for $7500 4 years ago in Andorra. He has no documents to prove the purchase. He justified inflating the claim for its loss to £7500 on the basis that this was the replacement cost in 2004. I have to say that without hearing any other evidence, I found his evidence about the watch totally unconvincing and it made me doubt his veracity generally.
12. Mr Hussein called Mrs Ma to confirm his version of events. It was not easy to understand everything Mrs Ma said because English is not her native language. In a witness statement dated 28^th November 2002, she explained that she had seen what had happened. Mr Hussein behaved in a gentlemanly fashion throughout. She did not hear him shouting. She saw him being hit on the head with a hard cardboard tube. In evidence she expanded upon this and said she had seen Mr Whyms hit the claimant three times. She confirmed Mr Hussein's account to me as to when and how those blows landed. In cross examination she said in clear terms that she had not seen Mr Hussein between the incident and 28^th November 2002 when she made her statement at Mr Hussein's "office". Mrs Ma said she met Mr Hussein on 28^th November 2002 and went with him to record her version of events. His "secretary" typed out her account twice before she agreed to sign. She claimed she had a clear recollection of events despite the fact she was not asked to recall what had happened until over a year later.
13. During the hearing I noticed a reference in a letter from a Mr Tyrell dated 10^th May 2002 sent to the defendants on behalf of the claimant enclosing a statement from her dated April or May 2002. It is in identical terms to the one dated the 28^th November 2002. No satisfactory explanation has been offered as to how this occurred or to explain Mrs Ma's very clear evidence about what happened on 28^th November. Mr Hussein merely said that Mrs Ma had been mistaken as to how many times she saw him and the circumstances in which her statement was taken, mislaid and then another copy produced and re-dated. In the light of the way Mrs Ma gave her evidence, when she was first asked to remember what had happened and the way this litigation has been conducted by the claimant I was left in real doubt as to what Mrs Ma had seen and what unprompted she could truly remember of the events.
14. The only other witness to the assault called before me was Miss Sammut. She was employed as the Manager at the Locarno on the day in question and was sitting at her desk behind Mr Whyms when the argument started. She has no doubt that Mr Hussein began shouting "you fucking monkey, you bastard" at Mr Whyms. She told Mr Hussein not to speak to her staff like that. His response was again to call Mr Whyms "a fucking monkey" and to call her a "fucking bitch". She asked him to leave. However, Mr Whyms was already so angry that he picked up a cardboard tube and went after Mr Hussein. Mr Hussein moved towards the television screens. She went after Mr Whyms. Whyms stood on a chair and struck Mr Hussein on the right upper arm/shoulder area. The tube broke. She said Whyms took a couple of swings. She only saw one swing connect, but she conceded there could have been a second blow. Throughout the incident Mr Hussein's sunglasses remained perched on the top of his head. This is confirmed by the video footage.
15. Mr Hussein did his best to undermine her evidence by suggesting she was still employed by the defendants and therefore financially dependent upon them and by suggesting she had not done her job properly. He put to her that when she realised there was a dispute between a customer and the cashier about change it was her duty to check the till. She responded by saying she thought the dispute was about changing a bank note for change for the fruit machine and in any event no-one asked her to check the till. She maintained her account despite being called a liar by Mr Hussein. I found her an honest and reliable witness who was doing her best to help me and who was asked to give her version of events soon after the incident. In relation to that, Mr Hussein is insistent that there should have been an Incident book entry about what happened. That may or may not be the case. The incident was certainly reported and Mr Samuels and a colleague brought into investigate within days of the assault. It matters not as far as my accepting Ms Sammut's evidence is concerned. Her evidence is consistent with what I saw on the video and the claimant's reaction to Mr Whyms and I unhesitatingly prefer it to that of Mrs Ma and Mr Hussein. I found the various accounts given by Mr Hussein as to the assault, how many blows there were, where they landed and their effect unreliable and contradictory in too many respects.
16. Returning to the events of 9^th September Mr Hussein was told to leave the shop which he did. He rang the police and waited outside for their arrival. They did not come. He went to the police station to report the matter and then went to another branch of William Hill's to ask the manager there to enquire of the Locarno branch whether or not his watch had been found. He claimed that on the same day he also went to the Accident and Emergency Department of St Georges Hospital and to see his GP Dr Shah, an old family friend.
17. On the 12^th September, as I have indicated, he saw Mr Samuels and a colleague. Mr Samuels took contemporaneous notes and where there was any conflict between his evidence and Mr Hussein's I preferred Mr Samuel's version of events. He told Mr Samuels that he had attended St Georges Hospital that day but when informed there was a 5 hour wait he left with painkillers, saying he would see his GP the next day the 10^th September 2001. Dr Shah claims to have seen him on the 9^th a Sunday. Dr Shah retired at the end of 2002 and said that all his records were taken from him by the local Health Authority. He says that he found it difficult to keep accurate patient records because he was a sole practitioner with no administrative staff. He claimed that he would frequently reach for a continuation card upon which to record a consultation, hoping eventually to match it up with the patient's records. I assume this unsatisfactory account was meant to explain why the only record of any consultation with Dr Shah about this assault was the one for 9^th September. No explanation was ever proffered as to how Mr Hussein was able to see Dr Shah at the surgery on a Sunday.
18. In any event, Dr Shah has recorded "h/o (history of) assault – a and e St Georges. Has no fracture and no dislocation. Co-proxamol." I have already referred to Ms Foster's argument that this was a strange entry given Mr Hussein's claim that he had suffered a head injury. I have to say and I do so with reluctance that having heard Dr Shah and Mr Hussein give evidence I was not persuaded that Dr Shah did in fact see Mr Hussein at all on the 9^th September . I found Dr Shah's evidence less than convincing. I got the distinct impression that he was prepared to say whatever he believed would help Mr Hussein. He denied being a family friend of the claimant. He was forced to admit, however, that Mr Hussein might be "involved with the family" I have no doubt he is a family friend of long standing as Mr Hussein has said.
19. Both Dr Shah and Mr Hussein claimed that there was another visit to the surgery on 12^th September 2001 for which there is no record save for a handwritten letter dated that day referring Mr Hussein to Dr Hussain, Consultant Psychiatrist and Fellow of the Royal College of Psychiatrists. Dr Shah claimed he had not met Dr Hussain before he referred Mr Hussein to him. Dr Hussain, however, said he knew Dr Shah and "Dr Shah is friendly with me". Mr Hussein said in evidence to me that he too knew Dr Hussain but only as "a friend of a friend". Yet, according to Dr Fry's notes he told Dr Fry that Dr Hussain was an old family friend. When this appeared in Dr Fry's report, Dr Hussain, successfully persuaded Dr Fry he had misunderstood. Having heard more of the relationship between Dr Hussain and Mr Hussein during the trial I have little doubt that Dr Fry got it right. The two men are friends and they are both friends with Dr Shah.
20. They were on sufficiently friendly terms that Dr Hussain did not charge Mr Hussein or Dr Shah for the consultation that they said took place the following year and he was prepared to see Mr Hussein miles from his usual consulting rooms. Dr Shah had purportedly asked Dr Hussain to advise re Mr Hussein's symptoms of "amnesia, headaches, panic attacks, lack of concentration". Curiously, Mr Hussein himself did not claim to have noticed those symptoms at that stage. He said he suffered pain and headaches for 8 days then the pain stopped. Thereafter, he became confused, suffered flashbacks, loss of short term memory and was unable to concentrate. Mr Hussein told Dr Fry he did not notice memory loss until 10 days after the assault.
21. Dr Shah did not seem to have appreciated the point made to him by Ms Foster in cross examination that if the symptoms were as bad as he has recorded (particularly amnesia and lack of concentration) following a head injury he should have referred Mr Hussein to a neurologist rather than a psychiatrist. He does not seem to have been too concerned about the extent of the injuries nor indeed did he press for an urgent appointment with the consultant. He denied that Dr Hussain had been brought in on the basis that he would provide a favourable report to support the claimant's demand for compensation against William Hill.
22. Dr Hussain did not see Mr Hussein until 11^th June 2002, a long wait argued Ms Foster, if the symptoms of possible head injury have been accurately recorded. Dr Hussain said he saw Mr Hussein at Dr Shah's surgery with Dr Shah present. Dr Shah agrees. Mr Hussein said he saw Dr Hussain at Dr Hussain's son's address and Dr Shah was not present. Dr Hussein's letter to Dr Shah dated 11^th June in which he purports to record his findings, however, makes no reference to Dr Shah's being present and states that the consultation took place at Mr Hussein's office. In his evidence, Mr Hussein said that he asked his GP to refer him to a consultant on a private basis because he was not prepared to wait to see an NHS consultant, He added that he saw Dr Hussain two weeks after seeing his GP. When it was pointed out to him that could not be right, he changed tack. He said he saw his GP soon after the assault, on the Monday evening (sic) and Dr Shah referred him to the Chelsea and Westminster Hospital "about the end of December". He was seen there in January and they suggested an appointment with a Consultant Psychiatrist. He was referred to the psychiatric unit. This seemed to ignore the fact that the letter he had produced from Dr Shah purported to refer him to Dr Hussain in September 2001 and the letter he produced which he claimed confirmed this referral was from the wrong hospital (St Georges) and dated the referral in October 2002.
23. No other documentation has been produced from Dr Shah's limited records, from the Chelsea and Westminster Hospital or the assessment unit to establish how much of this evidence is true and how much of it relates to this claim. In his closing submissions Mr Hussein said that his symptoms appeared 8-10 days after the assault and he was sent off to the Chelsea and Westminster Hospital for examination and they found nothing organically wrong. He then added that he went to the Chelsea and Westminster Hospital on Friday 14^th September 5 days after the assault. He said for the first time that Dr Shah gave him two letters on 12 September 2001 one to Dr Hussain and one to the Chelsea and Westminster. Mr Hussein told me that he did not get an appointment with Dr Hussain for several months because of Dr Hussain's other commitments.
24. I hope I have included enough of the various accounts given by Mr Hussein and his witnesses to explain why I now have real doubts as to whether Mr Hussein consulted any doctor about the effects of this assault. I have made all allowances for the fact that these events happened some time ago and the difficulties Mr Hussein and Dr Shah say they faced. Having done that, I was concerned that the twists and turns in the evidence presented to me by the claimant and his witnesses indicated that Mr Hussein is a man who is prepared to say anything to pursue his claim. Even if he did see Dr Shah or some other doctor after the assault, it is plain to me that there was no complaint of a head injury with possible serious consequences and no immediate referral to Dr Hussain. I have little doubt he was brought into the picture later in the day to re-enforce the claim for compensation.
25. As far as Dr Hussain's evidence is concerned I shall explain later why by the end of the case Mr Hussein placed no reliance upon it at all. I should say that even before he adopted that stance I was very troubled by what Dr Hussain had said. He could produce no notes of the 11^th June 2002 examination or of an examination in September 2002 which he said formed the substance of his report for the court. He referred in that report to "first" seeing Mr Hussein on 11^th June but there is no reference to any other examination in the report. Nor is any date given on his invoice for the September consultation. He could not help me as to when this was meant to have occurred. By the conclusion of his evidence I doubted whether a proper medical examination had taken place at all.
26. Certainly Mr Hussein's condition seems to have deteriorated substantially between the two occasions when Dr Hussain says he saw him. In June 2002 he was "still suffering from the residual effects of this index event and need therapy in form of Anxiolytics, Relaxation and Hypnotic tablets to help him sleep". By September, however, according to Dr Hussain he was suffering from Post Traumatic Stress Disorder and some very serious symptoms.
27. In his September 2002 report, Dr Hussain described Mr Hussein's having "witnessed an event in which he sustained serious injury and there was a threat to his physical integrity. His response was intense fear, helplessness and horror. Since then he has a recurrent, intrusive and distressing recollection of events, including the images. He gets distressing dreams about the events and feels that this traumatic event has upset him very much……. Immediately after the attack he had difficulty in falling or staying asleep, irritability with occasional outbursts of anger, difficulty in concentrating and exaggerated start and response. He feels and I agree with him that there is an impairment to his hobbies social and occupational functioning." Pausing there I heard nothing in evidence to persuade me that Mr Hussein experienced any of these symptoms save possibly distress and anger at being assaulted. Mr Hussein did not describe symptoms of this kind to Dr Fry. He complained about an effect on his memory, a fear of crowds, difficulty in sustaining an erection, and an occasional feeling of being in danger. He did not complain of flashbacks or avoidance behaviour or instances of hyper arousal. He said he slept well. Dr Fry could find nothing to indicate any significant intellectual impairment. If Dr Hussain is to be believed, there was a very substantial difference between what he was told by the claimant on the two occasions he saw him and what the claimant told Dr Fry. Yet he does not seem to have questioned his diagnosis of Post Traumatic Stress Disorder, following an assault with a cardboard tube.
28. Mr Hussein did not suffer any significant cuts or bruises and if he is right he was released from hospital having seen a nurse with nothing but pain killers. Dr Hussain, however, described him as suffering a "serious injury". He said that Mr Hussein's "bruises had healed but the mental impressions and trauma have not so far healed". He recommended counselling. Mr Hussein told Dr Fry that Dr Hussain had carried out "sessions" with him to help with his memory problems. Mr Hussein told me that Dr Shah not Dr Hussain counselled him 13 or 15 times. Dr Shah denied counselling Mr Hussein.
29. Not surprisingly Dr Fry disagreed with the diagnosis of Post Traumatic Stress Disorder. He referred me to the ICD 10 which provides the internationally recognised criteria for such disorders. Having been through them all with care, I am not persuaded Mr Hussein meets any of them. He certainly did not experience " a stressful event or situation… of exceptionally threatening or catastrophic nature which would be likely to cause pervasive distress in almost anyone." Dr Hussein when challenged on this said that this criterion was a subjective one and it would depend on the patient's attitude as to whether or not it was an exceptionally threatening or catastrophic event. This seemed to ignore altogether the final words of the criterion.
30. According to Dr Hussain (although this is denied by the claimant) Mr Hussein told him that he was so traumatised by the assault that he had to change offices because of their proximity to the attack. Mr Hussein tried to persuade me that he had suffered from the symptoms described in the ICD 10 including avoiding offices of William Hill which might remind him of the event. He called his secretary Ms Leheude to say that she had to accompany him into betting shops because he was frightened to go in. He claimed that he only visited such shops in an attempt to find a cardboard tube of the kind used to assault him. On the evidence before me, I am satisfied that Mr Hussein was perfectly prepared to visit betting shops as and when it suited him and he stayed in regular touch with his office near to the Locarno branch. Had he truly experienced the kind of flashbacks and terror sufferers from PTSD experience, he would have avoided those premises at all costs.
31. I will not trouble further with Dr Hussain's evidence as I found it totally unconvincing and very troubling. He too seemed to be prepared to say whatever would advance Mr Hussein's case. This is not something I say lightly given Dr Hussain's qualifications. Where there was any conflict between him and Dr Fry I unhesitatingly accept Dr Fry's evidence which was calm, sensible and fair. So fair, that he accepted Mr Hussein might have been telling the truth about some of his symptoms and Dr Hussain may have accurately recorded that there were residual effects at the time of his alleged examination. On that basis, he said that Mr Hussein might have suffered what he called an "adjustment reaction" lasting for a period of 6-9 months. This he said was a fairly minor reaction and very common. He said it would not have stopped Mr Hussein from working and it would not cause impotence as Mr Hussein had claimed. Any genuine complaints from which Mr Hussein had suffered were just as likely to have been caused by his diabetes and heart problems particularly arteriosclerosis.
32. In his closing submissions to me Mr Hussein abandoned his reliance upon Dr Hussain as a witness of truth. This was because he gave evidence on oath before me of attempts he said Dr Hussain had made to persuade him to withdraw from this case. After two days of hearing, I had to adjourn this case part heard. Before I did so I informed Mr Hussein of my concerns about the evidence and the possibility that if I found deliberate dishonesty on the part of the witnesses I might be forced to send the papers to the Director of Public Prosecutions. I made it plain that I had reached no final conclusions. He relayed this information to Dr Hussain. He testified before me when we resumed that Dr Hussain told him that he was suspended from practice and from serving on Mental Health Review Tribunals. Dr Hussain, I remind myself, had thanked me for taking his evidence last thing on day one of the trial because he had to attend a Mental Health Review Tribunal the next day. Mr Hussein claimed that this was the first time he had become aware of Dr Hussain's suspension. He did, however, know that the doctor faced serious charges of professional misconduct because he said that on the Saturday before Dr Hussain gave evidence, Dr Hussain had sought his help in drafting a reply to those charges and the two of them had spent 5 hours doing that. Mr Hussein also alleged that Dr Hussain had told him not to come to court for the completion of the hearing but to feign illness and he, Dr Hussain, would get him admitted to hospital.
33. Mr Hussein said he put this before me to establish his integrity and to demonstrate that he did not wish to deceive the court. I remind myself that this did not prevent Mr Hussein putting Dr Hussain forward as a very eminent expert, more eminent than Dr Fry who was cross examined on the basis he was only a member of the Royal College of Psychiatrists and Dr Hussain was a Fellow.
34. If any of Mr Hussein's account is true I find it incredible that a Fellow of the Royal College of Psychiatrists could allow himself to give evidence in these circumstances or that Mr Hussein could call him without informing the court of the charges and the close connection between the two men. They both knew full well, given the questioning in court, that the defendants were alleging an unusually close relationship between the claimant, his GP, and or the Consultant Psychiatrist. I shall ask that this judgment and these papers should be referred to the General Medical Council who should examine the conduct of Drs Hussain and Shah.
35. Nothing daunted by the loss of Dr Hussain, Mr Hussein invited me to ignore his evidence and to rely upon the evidence of Dr Fry as to the possibility of his having suffered from an adjustment reaction. The difficulty in this approach is that Dr Fry was relying on what the claimant had told him. He did not have the benefit of seeing Mr Hussein or his witnesses give evidence. He also relied upon the assertion of a fellow psychiatrist that Mr Hussein was suffering from residual effects in September 2002. I do not accept the evidence of either Mr Hussein or Dr Hussain. Virtually the only aspect of the joint opinion, therefore, that I am prepared to accept is that Mr Hussein suffered "an unsettling and upsetting experience." I am not satisfied on the balance of probabilities that he suffered any physical injury, any mental impairment or indeed any significant pain. If, which I doubt, he was hit on the head in such a way his glasses remained in place, it must have been a glancing blow and no more than unpleasant.
36. Lastly, I turn to Mr Hussein's claim for loss of earnings. By the time Mr Hussein filed a witness statement dated 13^th January 2004 his claim had grown to loss of earnings at the rate of £36,000 per annum until the age of 75 which he calculated in the sum of £250,000 and £150,000 for personal injuries. In his "Amended Particulars of Claim" he said that he suffered "injuries to my head and my face" in the assault. He said "I have not been able to work since resulting from loss of short term memory, headaches and blurred version. In his closing submissions, Mr Hussein limited his claim to £25,000 for the few months after the assault during which he claims he was suffering from an adjustment reaction relying on Dr Fry's evidence. He failed to acknowledge the additional evidence from Dr Fry that if he did suffer from this reaction it should not have prevented him from working.
37. Mr Hussein maintained that as a direct result of the assault he had been unable to work for 6-9 months and had to close down his business of Hussein and Co. I am satisfied this was untrue. When Dr Fry arranged to examine Mr Hussein he invited him to bring a friend or relation with him who could discuss with Dr Fry how the claimant had been after the assault. Mr Hussein took a man called Tyrell who said he is a Doctor of Philosophy. Dr Fry had no idea that Mr Tyrell might be a witness in the case and with the consent of Mr Hussein and Mr Tyrell he had a private conversation with him. Dr Fry recorded notes of the conversation as they went along and Mr Tyrell did not object to them.
38. Mr Tyrell, not apparently appreciating the extent of his friend's claim, told Dr Fry that he and Mr Hussein had been business associates for about 21 years. They had worked together in Mr Hussein's practice and Mr Tyrell had a principal role in the marketing of the accountancy practice of Hussein and Co. He told Dr Fry that their relationship continued as it had done in the past. Mr Hussein came into the office about two or three times a week and "he remains active in the practice. He continues to work as he has always done but Dr Tyrell had noted that sometimes he has become a little absent minded. He however keeps involved in the practice and works closely with Dr Tyrell." Dr Tyrell added: "Mr Hussein retains about 20 clients, they are generally quite substantial people, doctors, professional men and so on and the practice continues to look after them." Dr Tyrell said that it was "not so much that Mr Hussein had lost his technical abilities as an accountant but that he was becoming a little absent minded so that Dr Tyrell had to remind him about appointments and similar issues." Dr Tyrell said that he noticed this change in Mr Hussein's memory over the past year, i.e. during late 2002 into 2003.
39. Mr Hussein told me in terms that his clients left him in droves after the assault because he could not concentrate on his work and he lost his ability to practice as an accountant. He said that one client now owed HM Customs and Excise £40,000 because of an error made by him. He maintained that as a result he was forced to close the offices of Hussein and Co in Norwood Road West Norwood in June 2002. On one view of the evidence, this office was open for some kind of business when Mrs Ma said she visited in November 2002.
40. Faced with this obvious conflict between what he said and what Mr Tyrell was alleged to have said to Dr Fry, Mr Hussein served a statement from Mr Tyrell dated 18^th June 2003 in which he provided a different version of events. Mr Tyrell claimed to have told Dr Fry that Mr Hussein lost his memory after the incident and that this had led to the loss of clients and the closure of the office in June 2002. He maintained that they had surrendered the lease in that month.
41. Mr Tyrell was called to give evidence. Whenever challenged perfectly properly by Ms Foster on pertinent matters he became surly and said she was just speculating or the question was irrelevant. He reluctantly conceded that he had retired a "couple of years ago" namely June 2002, which may explain the closure of the West Norwood office if it occurred at that time. He claimed that his retirement had nothing to do with the closure of the office because he was not involved in the accountancy business. He was not a partner. It was pointed out to him that the notepaper bears the names of two men at the bottom, as if partners, his and Mr Hussein's. He said this was merely "cosmetic". He was involved simply as a consultant. His specialty is chemistry and metallurgy. He recruits clients for the firm nothing more. He could not explain why he had been involved in correspondence with the defendants on Mr Hussein's behalf and why he had described Mr Hussein as "our senior partner" leaving him as the only candidate for the junior partner role. Nor could he explain why if Mr Hussein suffered from a daily deterioration in his health after the assault, as he now claimed, he had not said so at a much earlier stage. He then added that when he made a statement in November 2002 the reason he did not mention any symptoms was that it was too early for the symptoms to show. He claimed that he was able to criticise Dr Fry for attributing false remarks to him without seeing Dr Fry's report. He eventually accepted that he had told Dr Fry the truth. There were other discrepancies upon which I shall not dwell.
42. Suffice it to say that I found Mr Tyrell to be almost as unimpressive witness as Mr Hussein. His evidence about his involvement with Mr Hussein's firm was contradicted by evidence from Mr Hussein, his own accounts and the documents. As far as I can ascertain, Mr Tyrell has held himself out to be a partner in Mr Hussein's firm. He has been closely involved in Mr Hussein's activities including the conduct of this litigation and a claim brought by another gentleman a Mr McManus against William Hill. He claimed his presence at a mediation hearing between Mr McManus and the defendants was purely fortuitous. I did not believe him. About the only time I suspect Mr Tyrell has told the truth during this litigation, which he has closely followed, is when he told Dr Fry how Mr Hussein kept working after the assault and when he told me that any symptoms he noticed were not apparent until after November 2002.
43. I accept Dr Fry's account of the conversation he had with Mr Tyrell for three reasons: firstly, I found him an honest and reliable witness; secondly he recorded the conversation at the time and lastly as I have indicated I did not find Mr Tyrell a witness who was either accurate or reliable in his evidence generally.
44. Similarly, I found Mr Hussein's own evidence as to his loss of livelihood for several months as a result of this assault totally unconvincing. Challenged about his failure to produce documentary evidence as to his earnings and loss of earnings, he gave a whole series of answers which I found extraordinary. He said he does not pay income tax here and has an agreement with the Inland Revenue that he need not submit returns. He also told me that he had no intention of disclosing the returns he does make to the authorities in France, where he lives for part of the year, because he is not obliged to do so. He said they would, however, reveal every penny he receives. He said that the reason he does not file returns in the United Kingdom is because all his income from Hussein and Co goes to an investment in a Nigerian silver mine. He produced a lump of silver as "confirmation" of this. He has produced no documents whatsoever; nor any in relation to his continuing extensive business dealings with Mr Tyrell, for example, they appear to be involved in acquiring or developing land in Africa. I note that the assault does not seem to have prevented Mr Hussein from continuing a number of complex business relationships.
45. Throughout the trial I saw no signs of the symptoms that, at one stage, he was claiming had forced him into premature retirement. I hope I have set out enough in the course of this judgment to explain why I decline to accept his evidence. His accounts of how he was assaulted have varied, his accounts of what injuries he suffered have varied and his accounts of the lasting impact upon him are invented. Asked to produce documentation that might support his claims he has conspicuously failed to do so and the documentation he has produced raises more questions than it answers. He may have closed an office in Norwood in June 2002, but I suspect that had more to do with Mr Tyrell's retirement from Hussein and Co and his own age than the assault. It could also have had something to do with his pre-existing medical condition. I reject his assertion that it had anything to do with the assault.
46. I have no doubt that Mr Hussein when he realised he had a claim against the defendants deliberately exaggerated it in the hope of persuading the defendants to settle out of court. He has involved others in concocting a grossly inflated claim. When the defendants refused to settle, he embarked upon a campaign against them. This included making wild allegations of lies, racism, and attempts to pervert the course of justice. He threatened to "sort out" Dr Fry when his report appeared to be unfavourable to him and made spurious and unjustified complaints against Dr Fry.
47. I should add this: I refused to allow Ms Foster to call evidence from employees of William Hill's to the effect that the claimant (calling himself Shah) said he was a solicitor acting for Mr McManus in his claim against the defendants at the mediation hearing. This seemed to me to be a peripheral issue but it did lead to Mr Hussein's admitting that he presented himself as assisting or representing Mr McManus and called himself Shah. He said this is a name he often uses and is entitled to do so.
48. Thus, as I have indicated I accept Ms Sammut's account and reject the account given by Mr Hussein and Mrs Ma. I am not persuaded on the balance of probabilities that Mr Whyms struck Mr Hussein three times including twice to the head or face. I am not satisfied that there was any blow to the head at all let alone one causing pain or injury but leaving his sunglasses perched on his head. I am satisfied there was probably one blow, maybe two, to the area of the right upper arm.
49. I reject Mr Hussein's evidence about the effect of such an assault upon him. If he suffered any loss of memory, concentration or absent mindedness, as described by his witnesses such symptoms date from a long time after the assault. I consider it far more likely that they are attributable to his age and pre existing heart condition and diabetes. I am not satisfied that he was wearing a watch currently worth £7500 that fell from his right wrist and went missing as a result of the assault.
50. I am satisfied that although the claimant is entitled to judgment, as is conceded by the defendants, and to damages, the damages should be only nominal. The sum will be £50.00 in total. I will receive written submissions as to costs or hear Mr Hussein in person if he prefers. I should indicate that if he wishes to appeal this judgment he should ask my permission to appeal. I am far from encouraging him to do so. I am also minded to have a copy of this judgment sent to his professional body and I am considering sending the papers to the Director of Public Prosecutions. I should welcome submissions on those matters.