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

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		27/06/2008

The Hon Mrs Justice Swift DBE :

The Background

1. This is an assessment of damages. The seven claimants, all of whom are members (or partners of members) of the same family, claim damages for physical and/or psychological injuries sustained as a result of an incident which occurred on 14 March 2004. On that date, the claimants, together with an eighth member of the family, Frank Buckley, and other members of the family, went out for a meal to celebrate the birthdays of the sixth and seventh claimants. After the meal, they went next door to a bar owned and run by the first defendant. In the bar, an argument broke out between some of the claimants and other customers. A fight ensued, in which some of the claimants became involved. It may be that they bore some responsibility for the events that occurred in the bar, but that is not a matter with which I am concerned. In any event, the police were called, the fight was broken up and the claimants left the bar, some being ejected and others leaving voluntarily. They made their way to a nearby bus stop from where they intended to take a taxi.
2. As they were waiting at the bus stop, a number of men walked towards them from the direction of the bar. The men proceeded to attack some of the claimants. It seems that this was some sort of revenge attack for what had happened in the bar. The men targeted Frank Buckley in particular. He was punched; he fell to the ground whereupon two of the men kicked him repeatedly in the head and face, causing injuries from which he died eight days later. Others of the claimants sustained injuries as a result of being attacked or in the course of defending their companions. Eventually, the police arrived and the men ran off. An ambulance was called and Frank Buckley, together with other members of the family, was conveyed to hospital.
3. Subsequently, some of the claimants' attackers were identified and prosecuted. At least two of the men, Daniel Anderson and Brian Horrocks, were doormen at the bar and were employed by the second defendant, who had been engaged by the first defendant to provide security services. Subsequently, Anderson and Horrocks, together with four other men, were convicted in connection with the attack. Anderson was sentenced to five years in a young offender institution for the manslaughter of Frank Buckley and for violent disorder. Horrocks was sentenced to three and a half years' imprisonment for violent disorder. The other defendants received custodial sentences of varying lengths for violent disorder.
4. It is clear from the evidence that Frank Buckley was a greatly loved member of the family. He appears to have played a pivotal role, both as the driving force behind the family businesses (in which his son, Craig (the second claimant) and his son-in-law, Wayne Morris (the fourth claimant) worked), and in their social lives. His loss represents a tragedy which cannot be compensated by the receipt of damages. The loss has been made worse by the way in which it occurred and by their feelings (whether justified or not) of anger and injustice at the outcome of the criminal trial.
5. In March 2007, the claimants commenced proceedings against the first and second defendants, alleging that they were vicariously liable for the acts of Anderson, Horrocks and the other attackers and, in addition, alleging negligence in, inter alia, failing to train and supervise their doormen properly and permitting persons to act as doormen who were not suitable to fulfil the role. The first defendant filed a defence, denying liability and alleging that Anderson and Horrocks were employed by the second defendant, not the first defendant, and that the other attackers had no connection whatsoever with the first defendant.
6. On 12 October 2007, the claimants obtained judgment against the second defendant in default of acknowledgment of service. By that time, the second defendant had gone into liquidation and its insurers, QBE Insurance (Europe) Ltd (QBE), had declined to indemnify it on the grounds of late notification of the incident. On 11 December 2007, judgment was entered for the first defendant in respect of its Part 20 claim against the second defendant. On the same date, the claimants' claim against the first defendant was stayed, pending resolution of the claimants' claim under the Third Parties (Rights Against Insurers) Act 1930. The claimants now seek an assessment of their damages in order to pursue their judgment against QBE.
7. I heard the case on 4 June 2008. Mr Guy Opperman of Counsel appeared for the claimants. Both defendants chose not to be represented, although solicitors for the first defendant and QBE were present in court maintaining "watching briefs". The case was dealt with mainly on the basis of written evidence which had been disclosed to the defendants and QBE in advance. I heard oral evidence from the first claimant in relation to the issue of her pre-incident employment. Otherwise, Mr Opperman took me through the evidence in the case of each claimant and made submissions about the appropriate level of damages in each case. Because of the number of claimants involved I reserved my judgment. I now set out my findings.

The first claimant

8. The first claimant, Christina Buckley, is the widow of Frank Buckley. Her claim is made on her own behalf and on behalf of Frank Buckley's estate under the Fatal Accidents Act 1976 (as amended).

The first claimant's claim on her own behalf

9. I have a witness statement from the first claimant dated 30 April 2008, together with statements she made to the police on 15 March, 30 April, 14 May (x 2), 1 June and 8 November 2004. I have a Medical Report from Dr Wesser, General Practitioner (GP), dated 5 October 2006, and from Dr Marshall, Consultant Psychiatrist, dated 3 April 2008. There is also a letter from Dr Hore, Consultant Psychiatrist, dated 29 May 2008.
10. At the time of the incident, the first claimant was 42 years old. She is now 46. she had been married to Frank Buckley for 24 years before his death. They had two children, Mark Buckley and Craig Buckley, the second claimant. The first claimant has four sisters, all of whom, together with their partners, were present at the celebration on 14 March 2004.
11. The first claimant witnessed the attack on her husband at close quarters. In her first statement to the police, she recorded how she crouched over her husband while he was on the ground in an attempt to shield him from the attackers' blows but was thrown to one side and pushed to the ground. Once the attack had ceased, she helped attend him before the ambulance arrived. During the eight days before his death, she spent most of her time with him in hospital, together with other members of her family. Subsequently, she saw his body in the mortuary. She gave several statements to the police, attended an identification procedure in an attempt to identify her husband's attackers, and gave evidence at the criminal trial.
12. As a result of her intervention in the attack, the first claimant sustained bruising to both legs, together with injuries to her ankles which were swollen. She had bruising to the tops of her arms and a large bruise on the back of her head, sustained when she was pushed to the ground. She was taken to hospital and treated in the casualty department. Her physical injuries settled without lasting effects. She had been involved in the fight inside the bar. While it is possible that she may have sustained some minor injuries at that time, I am satisfied that the majority of her injuries were sustained in the course of the attack outside the bar.
13. In March 2006, the first claimant was examined by Dr Wesser in connection with these proceedings. He suggested that she may be suffering from post-traumatic stress disorder (PTSD), in addition to an exacerbation of pre-existing anxiety. He advised that she should be referred for a full psychiatric assessment.
14. Dr Marshall examined the first claimant on 3 April 2008. He prepared a very detailed Report. He stated that her medical records contained evidence of a pre-existing vulnerability to psychological disorders. The first claimant had suffered from eating disorders in the past, together with probable agoraphobia. In 1990, she complained of being self-conscious and embarrassed in company and was suffering from panic attacks on occasions. In 2002, she was referred by her GP to a clinical psychologist. At that time, she was again suffering from panic attacks and anxiety, together with avoidance behaviour which was increasingly debilitating. In 2003, she attended four sessions with a cognitive behavioural therapist. She was said to be low in mood on occasion and to have poor self-esteem. In late 2003, there was a change of therapist and the first claimant did not continue with the counselling sessions. It is clear that, despite these difficulties, she lived an active life, mainly centred around activities shared with her husband and other members of her family.
15. The first claimant had worked from time to time during the marriage, mainly as a shop assistant. At one stage, she was employed for a fairly lengthy period by Marks and Spencer. In March 2004, she was doing some work for her husband's business on an unpaid basis. She told me that she and her sister had hoped to set up a children's nursery. However, she had no relevant qualifications and no positive steps towards this aim had been taken at the time of her husband's death. The first claimant told Dr Marshall that, prior to her husband's death, she had been a regular social – but not a heavy – drinker. The medical records tend to confirm this.
16. The first claimant reported to Dr Marshall that, at the time of the attack, she suffered terror and an overwhelming feeling of helplessness. Afterwards, she was in severe shock. Thereafter, her mood was very low, to the extent that, in July and November 2004, she made attempts to take her own life by overdosing on the anti-depressant medication she had been prescribed. During that period, she could not face leaving her home and became increasingly isolated. She had no interest in pursuing any of her usual activities or pastimes. She even lost interest in helping to care for her baby granddaughter. Her energy was reduced, she lacked concentration and was indecisive. She began to drink to excess on a regular basis. This caused, and continues to cause, considerable problems in her relationships with other members of her family. She had feelings of guilt and pessimism. She had little appetite and lost a considerable amount of weight. Her sleep was poor and disturbed.
17. Over time, her mood improved and she returned to some of her domestic and social activities, although with less satisfaction and enjoyment than previously. She regained some of the weight she had lost and, in March 2005, stopped taking her anti-depressant medication. In early 2005, she formed a new relationship with her current partner. This led to some estrangement from her family which caused her further distress and lack of self-confidence. In September 2005, she returned to work at Marks and Spencer but she was unable to cope and left after about two months. Since then, her only employment has been some casual work for her sister. She continues to suffer from what Dr Marshall describes as a significant level of psychological/psychiatric disorder.
18. Her high intake of alcohol has continued. Dr Marshall estimated her weekly intake as in excess of 100 units per week. Her sleep continues to be poor and she experiences recurrent nightmares. She suffers from flashbacks of images of the incident, and of her husband during and after the attack and in the mortuary. She resorts to alcohol to block out these images. She deliberately avoids certain areas of Manchester and certain specific situations which might result in her encountering the men responsible for the attack. She is fearful for her own safety and that of others. In particular, she is hyper-vigilant about the risk of attack. She is significantly more prone to irritability and anger than she used to be. These traits are exacerbated when she has consumed alcohol. She has difficulties with concentration. Her mood is still low and she was very distressed during her interview with Dr Marshall. She continues to have counselling on an irregular basis but feels that she requires more regular and focussed sessions.
19. According to Dr Marshall, the first claimant fulfils the criteria for PTSD. In addition, she has a moderate depressive condition. She has symptoms which are distressing, disabling, and inconvenient and which have persisted despite medication and counselling. She continues to use alcohol to a harmful extent. She has suffered a recurrence of her pre-incident phobic avoidance and panic attacks. As a result, she has suffered a considerable impairment in her personal, social and occupational functioning. He observed that her misuse of alcohol represents her attempt to cope with her predicament.
20. Dr Marshall attributed the conditions to the stresses associated with the traumatic events surrounding the attack on her husband and other members of her family. His view was that the first claimant's pre-existing history of psychological difficulties might have had the effect of lowering her threshold for developing PTSD. However, there was, he said, no evidence to suggest that she would spontaneously have developed any of the conditions from which she is now suffering had it not been for the incident in question.
21. As to the prognosis, Dr Marshall pointed out that more than four years had elapsed since the incident and the first claimant is still suffering from a significant degree of psychological disability. His view was that her condition is treatable. He recommended that she should be referred privately to Dr Hore, who is based at the Priory Hospital, Altrincham, and is an expert in dealing with alcohol-related disorders. He suggested that, once the first claimant's reliance on alcohol had been addressed, it would be possible to treat her remaining mood disorder by way of psychotherapy.
22. Dr Marshall concluded by saying that it was too early to give a definitive long-term prognosis in the first claimant's case. He suggested that, once the treatment he had recommended had been undertaken, the first claimant should be re-examined. By that time, the prognosis as to her employment prospects, leisure, social, domestic and other activities and overall quality of life should be clearer.
23. Dr Hore's opinion was sought. In a letter dated 29 May 2008, he indicated that it would not be possible to treat the first claimant's clinical depression until she was totally abstinent from alcohol. He suggested that she should undergo a period of assessment by him, after which she could be admitted to the Priory Hospital for a four-week intensive programme designed to promote total abstinence. That would be followed by an eighteen month out-patient treatment programme. The total cost of this treatment is £16,828. He said that, alternatively, the first claimant could be referred to a local NHS treatment unit. He was unable to say how long the waiting time at the NHS facility was likely to be.
24. Despite Dr Marshall's recommendation that the first claimant should seek an interim payment at this stage in order to undergo the suggested treatment and that her claim should be finalised at a later stage when the long-term prognosis is clearer, Mr Opperman urged me to make a final assessment of damages in her case. It seems that she feels strongly that the continuation of these proceedings is a factor which is impeding her recovery and that she desperately wants them to be concluded. Mr Opperman acknowledged that to proceed in the way he suggests may result in the first claimant receiving a lesser award than if conclusion of the claim were delayed. He said that the first claimant was prepared to take that risk.
25. Having regard to the nature and circumstances of the claim, the time which has already elapsed since the incident and the first claimant's strongly expressed desire for an end to these proceedings, I am prepared to make a final assessment of damages at this stage. In doing so, I shall have to reach a conclusion, on a balance of probabilities, as to the future course of the first claimant's psychiatric conditions.

General Damages

26. It is clear that the claimant has made quite considerable progress since the incident. She has forged a relationship with a new partner and has, it seems, managed to maintain that relationship despite some opposition from her family. However, it appears that, despite the improvements that she has made, she has not succeeded in reducing her alcohol intake and, until she does, effective treatment for her underlying conditions will not be possible. I was told that she now recognises that she would benefit from treatment, although she is somewhat resistant to the idea of receiving such treatment as an in-patient. I have little doubt that, if she attends Dr Hore for assessment, he will seek to persuade her of the importance of a short period of in-patient treatment. I consider that it is likely that she will eventually agree to this. Certainly, it would be in her best interests to do so. Although out-patient treatment – either private or by the NHS – has been mentioned, it seems unlikely that it will be as effective in tackling her severe alcohol problem.
27. In the event that the first claimant undergoes the relevant treatment, I consider, on a balance of probability, that her alcohol misuse will be successfully treated and that her other conditions will, with the assistance of the appropriate medication and psychotherapy, recede over time (probably within about 2 years) to the extent that she will be able to enjoy a quality of life that is significantly improved from what it has been for the last four years, albeit not wholly restored to its previous level. I assess damages on that basis.
28. I consider that the first claimant suffers from psychiatric injury which, under the Judicial Studies Board Guidelines, can properly be classified as moderately severe. Her condition has significantly affected her ability to cope with life and work and her relationships with her family. If the prognosis were that her current level of symptoms would persist indefinitely, I would assess damages towards the top end of the bracket for moderately severe psychiatric injury. Having regard to the relatively optimistic progress if the claimant undergoes treatment, however, I take the view that the appropriate award lies towards the middle of the range. In all the circumstances, and taking into account her relatively minor physical injuries, I assess the award for pain, suffering and loss of amenity at £24,500. To that must be added interest at the usual rate.

Special Damages

29. The claimant is entitled to the cost of the treatment that will be necessary in order to produce the anticipated improvement in her condition. It is plain that, if she does not undergo treatment, the prognosis – both for her psychiatric condition and her physical condition (as a result of the effects of her current heavy alcohol intake) - would be much poorer. I reduce the amount awarded under this head slightly to take account of the effect of accelerated receipt. The award will be £16,000. There are no other special damages.

The Fatal Accident Act claim

30. There is a claim for bereavement damages in the statutory sum of £10,000. Funeral expenses are claimed at £7,319.76. This is a high figure but the size of Frank Buckley's family and of his funeral, which necessitated the installation of a public address system to enable attendees to hear the funeral service, accounts for this. Interest is payable on these sums at the full special account rate.
31. Frank Buckley was 47 years old at the time of his death. The first claimant was his only dependant. I have a Report from Mr Simon Dudley, forensic accountant, dealing with the loss of dependency. Mr Dudley has seen all the relevant documentation. His general approach to the calculation of dependency is correct. He has calculated the figures to 31 March 2008. Mr Opperman, asked me to award damages as if the trial had taken place on that date in order to avoid the necessity for a complex recalculation. I shall do so.
32. Frank Buckley was a director and 50% shareholder (with the fourth claimant) of Buckley and Morris Construction Ltd (Buckley and Morris) a firm specialising in joinery, building and maintenance work. After his death, the fourth claimant and the second claimant continued to run the business. However, at some time between February 2007 (when Mr Dudley reported) and April 2008 (the date of the second claimant's witness statement), the company ceased to trade. Frank Buckley was also a director, with Phillip Wright, of Wright and Buckley Developments Ltd (Wright and Buckley). That company has now been transferred to the first claimant, who is the sole shareholder.
33. In the year ending March 2004, Buckley and Morris made a net profit of £63,954. Profits had risen over the three previous years and the profit in the year ending March 2004 was significantly more than in those previous years. That year, Frank Buckley's income from the company consisted of £4,900 gross by way of director's remuneration, together with gross dividend income of £15,120, making a total of £20,020 before tax. Buckley and Morris made a loss in the year ending March 2005, after Frank Buckley's death. This is not surprising since he had been primarily responsible for getting in the work for the business. However, in the year ending March 2006, Buckley and Morris made a net profit of £54,039. Directors' remuneration of £20,300 was paid out, together with dividend income of £46,000. Frank Buckley's share of these sums would have been one half.
34. Mr Dudley has proceeded on the basis that the result achieved in the year ending March 2006 would, but for Frank Buckley's death, have been achieved in the previous year and that, thereafter, Frank Buckley would have received director's remuneration of £10,000 gross per annum (£8,621 net) and an average dividend income of £30,000 gross per annum, (£28,875 net), giving a total net annual income of £37,496.
35. Wright and Buckley had been formed by Frank Buckley and Phillip Wright for the purpose of pursuing joint venture projects in the construction and renovation of properties. At the time of Frank Buckley's death, the company was involved in ongoing projects for which he had not yet received any remuneration. After his death, it was calculated that his share of the profits from the projects in which he had been involved was £220,000. In payment of this sum, Phillip Wright transferred (through his company, Wrightchoice) two properties to Wright and Buckley for nil value. The first claimant became sole shareholder of Wright and Buckley at that time and the sole beneficiary of the properties. She lets out the properties and derives a rental income therefrom. Had Frank Buckley survived, he would have received half the rental income, and the benefit of half of any increase in the capital value of those two properties, as well as any other properties which were the subject of other similar projects undertaken by Wright and Buckley. On that basis, Mr Dudley has calculated that Mr Buckley would have probably received an average annual income of £50,000 gross (£30,000 net) from Wright and Buckley.
36. Whilst I have received no submissions from the defendants in relation to the figures in Mr Dudley's report, I must form my own view as to the reasonableness or otherwise of his contentions. I consider that the figures he advances for Frank Buckley's likely future income are somewhat optimistic. The amounts paid by Buckley and Morris by way of directors' remuneration and dividend income in the year ending March 2006 were significantly greater than in the year ending March 2004.. There are no company figures available for the year ending March 2007. The business has now ceased to trade. Whilst there is no reason to believe that it would not have continued to trade had Frank Buckley been alive - and while the net profits were increasing prior to his death - I do not consider that it can necessarily be assumed that the amount paid to the directors would have remained at or above the 2006 level on an indefinite basis. There may well have been fluctuations in the financial climate (such as the one being experienced at present), which would inevitably have affected the profitability of the business. Moreover, instead of paying out all the net profits by way of dividend, the directors may have decided to retain profits within the business (as was done in 2004). While Frank Buckley would have been entitled to half those retained profits, they may have been used to meet any extraordinary expenses of the business or as a "hedge" against a bad year in the future. Accordingly, it cannot be assumed that all retained profits would have been distributed.
37. Similar considerations apply in the case of Frank Buckley's income from Wright and Buckley. While Mr Dudley has made some allowance in his calculations for the fact there may have been periods when the company had no projects on hand, it does not seem to me that that allowance takes sufficient account of the reduction in the profits available for such projects in the light of a financial downturn such as that being experienced at present.
38. In calculating dependency, Mr Dudley has assumed that, had it not been for her husband's death, the first claimant would have returned to work at Marks and Spencer (or employment with comparable earnings) from 1 April 2005 and would have continued to work regularly thereafter with annual earnings of £9,000 gross (£7,952 net). This assumption seems to me to be favourable to the defendants. The first claimant had not been in regular employment for some time prior to the incident. Her last paid work was for Buckley and Morris in the year ending March 2002. Whilst I accept that, if her husband had been alive, she would probably have had paid employment from time to time, it seems unlikely that she would have been in continuous employment from April 2005 onwards. It is possible that she and her sister might have realised their aspiration of opening a nursery; however, at the time of her husband's death, no step had been taken to further the plan and it may well be that it would have remained a "pipe dream".
39. It is not feasible, on the evidence available, for me to make precise findings on what the earnings of Frank Buckley and the first claimant would have been at any given time. Instead, it seems to me appropriate to adopt a rather more "broad brush" approach to the question, in order to taken into account the circumstances I have referred to. Accordingly, in calculating future annual loss of dependency, I have reduced Frank Buckley's projected net income by 20% and the first claimant's net income by one half. That produces a figure of £34,669 per annum, which I have rounded up to £35,000.
40. As to past loss of dependency, I have made a 10% adjustment to Frank Buckley's annual earnings (there being a lesser degree of uncertainty over this shorter period) and have assumed that the first claimant would have earned about half the sum assessed by Mr Dudley. That produces, to round figures, a figure for past loss of dependency of £136,000, to which should be added interest at half the special account rate.
41. When making his calculations, Mr Dudley assumed that Frank Buckley would have retired at the age of 65 years. Having regard to his generally good health and the nature of his work for the two companies, this seems to me entirely realistic. He assumed – reasonably in my view – that the first claimant (who would then have been 60) would have retired at the same time. He calculated the annual loss of dependency on Frank Buckley's pension income as £4,943 to 25 January 2007 (the first claimant's 65^th birthday), and £3,482 thereafter. I accept those calculations. I also accept the multipliers he has put forward for the various periods of loss.
42. The award for future loss of dependency will therefore be as follows:

To 02/02/22: £35,000 x 9.98 = £349,300

02/02/22 – 25/01/27: £ 4,943 x 4 = £ 19,772

From 26/01/27: £ 3,482 x 4.91 = £ 17,097

TOTAL: £386,169

The second claimant

43. The second claimant, Craig Buckley, is Frank Buckley's younger son and the partner of Michelle Whiteside, the fifth claimant. He was 19 years old at the time of the incident. He is now 24. He worked in the business run by his father and Mr Wright.
44. I have seen a witness statement from the second claimant dated 15 April 2008, together with statements he made to the police on 16 March, 2 April, 3 April, 8 July and 23 November 2004. There is also a letter from his GP, Dr Stedman, dated 18 July 2005. There is no psychiatric evidence in his case.
45. During the attack, the second claimant was thrown to the floor and struck. He managed to escape. He sustained minor physical injuries, consisting of a graze to his forehead, a stiff neck, swollen ear, a black eye and swollen and cut lips. It is probable that some of these injuries were sustained during the fight inside the bar, rather than during the incident outside, although I accept that the majority occurred during the latter attack. He was taken to the casualty department at hospital but discharged himself before he was seen by a doctor. Shortly after the incident, he noticed a lump on the back of his head which was tender to the touch. He felt unwell for several days but sought no medical attention. His injuries healed without any lasting effects.
46. The second claimant saw his father being attacked. During the eight days before his father's death he spent much of his time with him in hospital. He then assisted in the police enquiries, attended identification procedures and gave evidence at the criminal trial. As a result of these events, the second claimant suffered what Dr Stedman termed "a grief reaction", together with stress. He was referred for psychological counselling in the spring of 2005. He attended two appointments after which he was discharged at his own request. He continues to experience flashbacks, in particular of his father in hospital. He avoids going to places where he might encounter the men who attacked his family.

General damages

47. I take into account the fact that the second claimant has not been diagnosed as having suffered any specific psychiatric illness. Nevertheless, I have regard to the frightening and distressing effect of the attack, together with his physical injuries. In my judgment, the appropriate award of damages for pain, suffering and loss of amenity is £1,500 to which should be added interest at the usual rate.

Special damages

48. By way of special damages, the second claimant claims £7,680 in respect of unpaid work carried out in the family business over a period of 12 months after Frank Buckley's death. I do not understand the legal basis for this claim, nor do I have any information as to why he was unpaid for the work for which he performed for the business. I do not consider that this sum is recoverable and make no award in respect thereof.
49. There is a claim for clothing damaged in the attack in the sum of £600 and I make an award in that sum, together with interest at half the special account rate.

The third claimant

50. The third claimant, Paula Lancaster, is the first claimant's sister and was therefore Frank Buckley's sister-in-law. She was 40 years old at the time of the incident. She is now 44. In March 2004, she was working as a cashier in a University canteen.
51. I have a witness statement from the third claimant dated 1 May 2008, together with statements made by her to the police on 23 February, 2 April, 3 April, and 23 June 2004. There is a Medical Report from Dr Arshid Khan dated 18 November 2006 and a Report from Dr Tomlinson, Consultant Psychiatrist dated 18 February 2008.
52. In her first statement made to the police, the third claimant described seeing two of her brothers-in-law, Wayne Morris (the fourth claimant) and Anthony Lomax, being attacked by a man. She and her sister, Patricia Morris, went to their assistance, whereupon the man started to hit Patricia Morris. The third claimant says that the next thing that she remembers is waking up in hospital. She suggests that she was struck and kicked as she was on the ground as a result of which she lost consciousness. Although she does not mention it in her statement, she appears to have suggested to Dr Tomlinson that she may also have been knocked down in the earlier fight which occurred in the bar.
53. The third claimant sustained a black eye, bruising to the sides of her face and right arm, left knee and left elbow. She also had an injury to her lower abdomen. She attended the hospital casualty department where she was observed to have two contusions to her forehead. It is recorded in the notes made at hospital that she had suffered no loss of consciousness. She was discharged. Notes made by her GP on subsequent visits in March and April 2004 record bruising to the left side of her face, a haematoma to the right side of her abdomen, pain in her right shoulder and swelling of the right index finger. It is probable that some of her injuries were caused in the fight inside the bar. However, I accept that the majority occurred as a result of the attack outside the bar.
54. The third claimant reported to Dr Khan that the discomfort and bruising resulting from these injuries resolved within three months of the incident, although her headaches persisted for about four months. Dr Khan attributed the headaches to post-concussional syndrome. He found no abnormalities on examination of the third claimant and foresaw no problems arising from her physical injuries. Dr Khan concluded that, at the time of his examination, the third claimant was suffering from symptoms of an ongoing PTSD. He recommended that she should be assessed by a clinical psychologist.
55. The third claimant was referred to Dr Tomlinson, Consultant Psychiatrist. He reported that, ever since the incident, she has been anxious and fearful of further assaults. She avoids going out or travelling alone. She is afraid of being in the house on her own and requires the assistance of family and friends to keep her company. She experiences intrusive thoughts and flashbacks about the attack and about her brother in-law in hospital and in the mortuary. She avoids the area where the attack took place, and is afraid of coming into contact with the attackers and their associates. She has difficulty in sleeping.
56. Having examined the third claimant's medical records Dr Tomlinson noted that, in 1990 and between 1995 and 2004, she attended her GP on several occasions complaining of depression, loss of appetite, stress, lack of concentration, poor sleep and fatigue. She was prescribed anti-depressants. Several attendances since the incident were also recorded. In 2005/6, she underwent counselling. The counsellor considered that she had symptoms of PTSD.
57. Dr Tomlinson considered that the third claimant had a moderate form of PTSD. The symptoms of anxiety she suffers when going out or being left alone result from a phobia. Both the PTSD and the phobia are, in his opinion, caused solely by the incident and give rise to a moderate degree of handicap. As to the pre-existing problems with depression, Dr Tomlinson said that, at the time he examined her, she was not depressed. He suggested that the previous history of depression might have made some (no more than 10%) contribution to her psychiatric difficulties.
58. As to the prognosis, Dr Tomlinson's opinion was that the third claimant's condition was unlikely to improve without treatment. He recommended that she should undergo cognitive behavioural therapy. He estimated that she would require 8-12 sessions of therapy over a period of 3-4 months in order to effect a significant reduction in her symptoms and to enable her to function without the current need for support from family and friends. He noted that the third claimant had returned to work as a cook four months after the incident and had managed to work since. He did not expect her to require time off work as a result of her difficulties in the future.

General damages

59. I consider that the third claimant suffers from psychiatric injuries which, under the Judicial Studies Board Guidelines, can properly be classified as moderate. In my view, they lie towards the top end of the bracket of awards for moderate psychiatric injury. Taking into account all the circumstances of the case, including her physical injuries, I assess the appropriate award of damages for pain, suffering and loss of amenity at £10,000 to which must be added interest at the usual rate.

Special damages

60. There are claims for lost earrings, damaged clothing and prescriptions in the total sum of £900 and I make an award of that sum, together with interest at half the special account rate. In addition, the claimant is entitled to recover the cost of treatment which I am told will be £1,400 plus VAT, making a total of £1,645.

The fourth claimant

61. The fourth claimant, Wayne Morris, is married to the first claimant's sister and was therefore Frank Buckley's brother-in-law. He was also his business partner and close friend. At the time of the incident, he was 36 years old. He is now 40.
62. I have seen a witness statement made by the fourth claimant dated 9 May 2008. There is also a statement he made to the police on 27 April 2004. There is a Medical Report from Dr Arshid Khan, dated 17 March 2007. There is no psychiatric evidence in his case.
63. During the attack, the fourth claimant was punched in the face and fell to the ground. He was then kicked in the head and body. He managed to get to his feet and defend himself. He did not see Frank Buckley assaulted and became separated from the other members of the family, as a result of which he did not learn of Frank Buckley's injuries until some time later.
64. As a result of the attack, he suffered soft tissue injuries,including swelling to his nose and lips, together with an injury to the inside of his lip and grazing to the back of his head, his back, both shoulders and one of his knees. He suffered tenderness and restriction of movement in his left shoulder and pain in his right arm. Most of his injuries had resolved within six weeks of the incident although the discomfort in his right arm persisted for 6-7 months thereafter. He also sustained a crack to a front incisor tooth which subsequently fell out and had to be replaced. When examined by Dr Khan three years after the accident, Dr Khan found no physical abnormalities. It is probable that some of his injuries resulted from the fight in the club but I accept that the majority of them (in particular the injury to his right arm and tooth) occurred as a result of the attack outside the bar.
65. As a result of the attack, the fourth claimant suffered psychological symptoms, including stress, depression and anxiety. His symptoms of stress and depression settled within about 18 months of the incident. Dr Khan's view was that, at the time of his examination, the fourth claimant did not fulfil the diagnostic criteria for PTSD and did not require assessment by a clinical psychologist. Nevertheless, some symptoms of anxiety persist and the fourth claimant does experience some reliving of the events surrounding the incident. He avoids the area where the incident occurred. His present level of symptoms is not such as to affect his employment or leisure activities.

General damages

66. In assessing the damages in the fourth claimant's case I take into account the fact that he has not been diagnosed as suffering from any specific psychiatric illness. Nevertheless, I have regard to the frightening and distressing effect of the attack on him, together with its aftermath, as well as his physical injuries. I take the view that the appropriate award for pain, suffering and loss of amenity is his case is £3,500, together with interest thereon at the usual rate.

Special damages

67. There are no special damages.

The fifth claimant

68. The fifth claimant, Michelle Whiteside (now Michelle Buckley), is the wife of the second claimant Craig Buckley, who was Frank Buckley's younger son. At the time of the incident, she was 18 years old and Craig Buckley's fiancée. She is now 22. She has a young child, Megan, and a baby born earlier this year.
69. I have seen a witness statement from the fifth claimant dated the 15 April 2008, together with statements made to the police dated 15 March, 16 March, 2 April, 3 April, 27 April, 20 May, 6 July, 23 November and 7 December 2004. There is a Medical Report from Dr Mahon, dated 2 April 2007, together with a Report from Dr Tomlinson, Consultant Psychiatrist, dated 30 January 2008.
70. The fifth claimant witnessed the attack on Frank Buckley and, together with the first claimant, attempted unsuccessfully to protect him from his attackers. She was grabbed by the hair and thrown to the ground whereupon a man stamped on her stomach. For much of the following eight days, she remained at the hospital with Frank Buckley and members of his family. She visited his body in the mortuary after his death. She was interviewed by the police on a number of occasions and attended an identification procedure.
71. Following the incident, the fifth claimant had bruising and tenderness of her stomach at the site of a previous Caesarean section scar and her ribs were sore. She experienced vaginal bleeding which was diagnosed as secondary to trauma. That settled within about 3-4 weeks. She was absent from her work as a school dinner lady for a month, after which she was able to return. At the time when she was examined by Dr Mahon, three years after the incident, she had no physical abnormalities. She had been involved in the fight in the bar but I accept that her physical injuries was wholly caused by the assault to which she was subjected outside the bar.
72. In her statements, the fifth claimant described how the incident terrified and traumatised her. She was extremely distressed. In the immediate aftermath, she was constantly reliving the events of the evening. She was afraid to go out socially in case a similar incident occurred. The process of identifying the family's assailants caused her particular distress. Her sleep was disturbed and she suffered nightmares. Her condition improved gradually, although she continued to suffer some symptoms. In 2007, she experienced headaches and feelings of dizziness to the extent that she was referred to a neurologist. Subsequently, she was referred by her GP for counselling. Because of the psychological symptoms reported to him, Dr Mahon suggested that a psychological assessment might be undertaken.
73. The fifth claimant was referred for an assessment by Dr Marshall, Consultant Psychiatrist. Dr Marshall reported that, at the time he saw the fifth claimant, almost four years after the incident she was still exhibiting some residual symptoms of a PTSD, together with low mood. In particular, she displayed situational-specific anxiety and phobic avoidance, which led her to avoid visiting the area where the incident occurred and going out unaccompanied even within her own locality. She also had a morbid dread of meeting the assailants or their families. Dr Marshall considered that the symptoms she suffered in 2007 were probably caused by her psychological stress. He attributed her continuing symptoms entirely to the incident of March 2004. He considered that they constituted an impairment of personal and occupational functioning.
74. Dr Marshall expressed the view that the prognosis for further recovery would be improved if the fifth claimant underwent treatment by psychotherapy. He suggested that, once her baby was born, she should undergo private assessment and a course of treatment. As to the prognosis, Dr Marshall's opinion was that psychotherapy should effect an improvement in her symptoms, although he considered that a low level of symptoms was likely to remain. He observed that the fifth claimant would remain more vulnerable than previously to a return of her symptoms in the event of suffering further trauma.
75. Although Dr Marshall clearly envisaged that the final assessment of damages would be delayed until the fifth claimant had undergone treatment and her progressed had been assessed, Mr Opperman made clear that she wanted her case concluded now. For the reasons I have previously referred to in connection with the first claimant, I am in agreement with that course.

General Damages

76. I shall therefore proceed to assess damages on the basis that the fifth claimant will undergo treatment which will result in an improvement in her symptoms to a level that will not significantly effect her day-to-day functioning or quality of life. I shall also bear in mind that she will remain at risk of deterioration in her condition in the future.
77. I consider that the fifth claimant suffers from psychiatric injury which, under the Judicial Studies Board Guidelines, is properly categorised towards the top end of the bracket of awards appropriate to a modest psychiatric injury. Taking into account all the circumstances – including the unpleasant physical injury and the onset of symptoms in 2007 - I assess the appropriate award of damages for pain, suffering and loss of amenity at £11,000 together with interest at the usual rate.

Special damages

78. There are claims for special damages in the sum of £850 in respect of lost earrings, damaged clothes and shoes. I award the sum of £850, together with interest at half the special account rate. In addition the fifth claimant is entitled to the costs of treatment which is estimated at £1,400 plus VAT, a total of £1,645.

The sixth claimant

79. The sixth claimant, Marjorie Blenkhorn, is the partner of the seventh claimant, John Lancaster, who is the father of the first claimant and was Frank Buckley's father-in-law. At the time of the incident, she was 72 years old. She is now 76.
80. I have a statement from the sixth claimant dated 29 April 2008, together with statements made to the police on 29 March and 13 May 2004. There is a Medical Report from Dr Arshid Khan, dated 18 November 2006, together with a Report from Dr Tomlinson, Consultant Psychiatrist, dated 1 April 2008.
81. The sixth claimant was some distance away from other members of the family when they were attacked. She saw the first claimant being struck and she shouted to the men to leave her alone. She then felt a blow to her head and recalls nothing else until she came around on the ground. She did not see the attack on Frank Buckley and was not aware he had been injured until the following day. She was not involved in the fight in the bar.
82. The sixth claimant reports that, immediately after the incident, she had shooting pains in the left side of her head, together with limited movements of the neck and soft tissue injuries to her nose, head and scalp. She also had various aches and pains. She attended her GP. Most of her symptoms resolved within a few weeks. However, since the incident, she has suffered shooting pains in the left side of her head, together with a dull pain in her eyes and intermittent blurred vision which she attributes to the incident. There is no medical evidence to support the contention.
83. Following the incident, the sixth claimant suffered anxiety and difficulty in sleeping, with flashbacks and nightmares about the incident. She had decreased concentration and energy levels and was low in mood. Anti-depressant medication was prescribed and she had some counselling from Victim Support. She has continued to experience anxiety, together with regular flashbacks and difficulty in sleeping. She is afraid of sleeping alone in her house in case the perpetrators of the attacks seek her out. She avoids going into the area where the attack occurred.
84. On examination, Dr Khan found no physical abnormalities attributable to the incident. In the light of her ongoing psychological symptoms, he recommended assessment by a clinical psychologist. She was referred to Dr Tomlinson, Consultant Psychiatrist. He expressed the view that she had suffered from a moderate depressive illness. She had no history of depressive disorders in the past and Dr Tomlinson attributed her depression to the incident. By the time he saw her, the symptoms were mild in nature and he did not consider that she required further treatment.
85. Dr Tomlinson's opinion was that the sixth claimant had experienced some symptoms of PTSD attributable to the incident. However, these symptoms had diminished gradually over time and did not require further treatment. He predicted that they would continue to reduce in intensity over time.

General damages

86. I consider that the psychiatric injury sustained by the sixth claimant lies towards the lower end of the bracket appropriate to psychiatric injuries of moderate severity as categorised in the Judicial Studies Board Guidelines. Taking into account all the circumstances of the case, including the physical injuries, I assess the appropriate award of damages for pain, suffering and loss of amenity at £4,000 together with interest at the usual rate.

Special damages

87. There is no claim for special damages.

The seventh claimant

88. The seventh claimant is the father of Christine Buckley and Paula Lancaster, the first and third claimants, and was the father-in-law of Frank Buckley. He is the partner of the sixth claimant. At the time of the incident he was 65. He is now 69. He is retired, having been unable to work since being involved in a road traffic accident in 1990.
89. I have a witness statement from the seventh claimant dated 29 April 2008, together with statements to the police dated 24 March and 12 October 2004. There is a Medical Report from Dr Simoes, dated 9 December 2006, and a Report from Dr Tomlinson, Consultant Psychiatrist, dated 19 February 2008.
90. The seventh claimant witnessed the attack on Frank Buckley and other members of his family. One man punched his daughter, Patricia Morris, and as he went to intervene, he was kicked under his right knee and knocked him to the ground. He had no involvement in the fight in the bar.
91. As a result of the assault, the seventh claimant sustained bruising to his right leg and left shoulder. He developed a stabbing pain and haematoma in the leg. He had previously limped on his right leg but his limp was exacerbated. He also had pain and stiffness in his left shoulder, together with a haematoma. He consulted his GP two days after the incident. A week later, he went to the casualty department at hospital. He was prescribed analgesics and underwent physiotherapy treatment. X-rays showed that a screw which had been inserted into his left shoulder as a result of a previous injury had become displaced.
92. The haematoma to his leg disappeared after about 9 weeks and his pain began to improve about four months after the incident. In December 2006, when he saw Dr Simoes, he still had mild stabbing pains in his right leg and was experiencing some difficulty in walking. The haematoma on his left shoulder disappeared after about 4-6 weeks. He continued to suffer pain and stiffness in the shoulder which began to settle after about four months. He still has occasional stabbing pain and stiffness in the shoulder. Dr Simoes did not anticipate any restrictions or limitations in his social, recreational or domestic activities in the future as a result of his physical injuries.
93. After the incident, the seventh claimant's sleep was disturbed as a result of pain and also because of flashbacks and nightmares which he was experiencing. This continued for about a year. Because he reported ongoing psychological disorder, a Report was obtained from Dr Tomlinson, Consultant Psychiatrist. He reported continuing intrusive thoughts and flashbacks about the incident, together with occasional nightmares.
94. The seventh claimant's medical records revealed that he had a history of depression going back to 1988. In 2002, he was reported to be depressed and sleeping poorly. Anti-depressants were prescribed with good effect.
95. Dr Tomlinson concluded that the seventh claimant had a mild form of PTSD. He considered that his previous history of depression may have rendered him more vulnerable to developing PTSD than he would have otherwise have been. However, this was unlikely to account for more than 10% of his symptoms. Dr Tomlinson observed that psychological treatment might be of benefit, although, having regard to the fact that the seventh claimant's symptoms were relatively mild, it was uncertain whether he would gain significant benefit from such treatment. Dr Tomlinson indicated that anti-depressant medication may assist.

General damages

96. The seventh claimant had pre-existing problems with his legs and left shoulder which were exacerbated by the effects of the accident. His psychiatric injuries can properly be categorised as towards the bottom end of the bracket for moderate psychiatric injuries as identified in the Judicial Studies Board Guidelines. Taking into account all the circumstances of the case, I assess the appropriate award of pain, suffering and loss of amenity in his case at £5,500, together with interest at the usual rate.

Special damages

97. There is a claim for damaged clothing in the sum of £190. I make an award in that amount, together with interest at half the special account rate.