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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/12/2016

HHJ PETER HUGHES QC:

Introduction

1. This claim arises out of an incident in the course of the Claimant's employment in which she was exposed to carbon monoxide poisoning.
2. Liability is admitted and the hearing has been concerned exclusively with the valuation of the claim.
3. The incident that gives rise to the claim occurred on the 12^th April 2011. The Claimant, Mrs Kennedy, was employed by the London Ambulance Service (LAS) as a solo responder. She had been so employed for about ten years.
4. On the day in question she was supplied with a Vauxhall Astra for her twelve-hour shift, which started at 2pm.
5. The vehicle was one which was not normally in use but it was the only one available. The battery was flat and had to be started with jump leads before she could start work. There was also an undetected fault on the exhaust system. As a result of this harmful carbon monoxide (CO) fumes leaked into the driver's compartment.
6. At about 11pm, so some nine hours into the shift, Mrs Kennedy returned to the ambulance depot complaining of feeling unwell and nauseous. Her team leader checked inside the vehicle and discovered a strong smell of diesel and smoke coming from the rear.
7. The Claimant was placed immediately on a combination of oxygen and Ventolin and taken to the Queen Elizabeth Hospital. There she underwent tests and was diagnosed to have been exposed to CO poisoning. Following treatment, she was allowed home early the next morning.
8. Mrs Kennedy was 38 years of age at the time, married with three children, sons aged fifteen, five and three. The incident came at a difficult time in her life. I will focus on the details later in the judgment. She had been referred just two days earlier to the LAS's Occupational Health Department (OHD) for support and assistance. Nine days after the incident she saw her general practitioner (GP) and was certified as medically unfit to return to work.
9. She eventually went back on a phased return to work at the end of September 2011 and remained in the employment of the LAS until her employment was terminated in April 2015. By then she had been off work since June 2014 and recommendations by OHD to assist her return to work had been found to be impossible to implement.
10. The Claimant has not worked since, and the fact that she now suffers from a chronic psychiatric condition is not disputed.

The Issues

11. The primary issue concerns the question of whether and to what extent the Claimant's psychiatric symptoms are, on a balance of probabilities, caused wholly or materially by her exposure to CO poisoning in April 2011.
12. The case for the Claimant is that it was a profound life changing experience particularly for a person who was trying at the time to cope with other stresses in her life, and that she developed in consequence a post-traumatic stress disorder (PTSD) that continues to this day.
13. The case for the Defendant is that the effect of the incident on the Claimant's psychiatric wellbeing was much less severe, that her problems are attributable to her underlying vulnerability to stress and that symptoms that post-date her return to work are not causally linked to the event.
14. Depending on the findings in relation to that aspect of the case, there falls for consideration the question of the Claimant's prognosis and whether she will be able to resume in the future some form of working life, and, if so, when and to what extent.
15. The assessment of damages under the various heads – general damages, loss of earnings, care and assistance – follow on from the decisions on these issues.

The Evidence

16. The documentary material runs to 7 lever arch files and over 3150 pages, much of it generated by medical records and reports and employment records and HR material.
17. There are medical reports and assessments prepared over the last five years from various sources.
18. During the course of the hearing, I have been taken to parts, but by no means all, of the documentation. I have been assisted by comprehensive chronological schedules prepared by both counsel, for which I am grateful.
19. In terms of oral evidence, I have heard from the Claimant, her mother briefly, Stephanie Adams who was the Claimant's line manager and continues to be employed by LAS, and the two neuro-psychiatrists instructed by the parties, both highly experienced and well-qualified, Professor Ron for the Claimant and Professor Dolan for the Defendant.
20. I was urged, if at all possible, not to reserve judgment because of the effect of the stress and uncertainty on the Claimant. It became apparent during closing submissions that this would be an impossible course to follow if due justice was to be given to the parties' closing submissions. Instead, at the close of the hearing, I indicated in broad terms the conclusions that I had reached, and invited counsel to submit final written submissions on the calculation of damages in particular in respect of future loss of earnings.

Conclusions

21. I am satisfied on the evidence before me that –

i) the Claimant developed PTSD as a result of her experiences on the 12^th April 2011;

ii) she continues to suffer from the condition;

iii) her present condition is the result of the incident; and

iv) with appropriate treatment she should be able to return to employment in a less stressful environment in about two years' time.

22. In setting out what has led me to reach these conclusions, I propose to approach matters in this way:–

i) Firstly, to review the background material and events since April 2011 by reference to the voluminous occupational and medical records;

ii) Secondly, to consider my assessment of the Claimant and her evidence, in the context of the documentation;

iii) Then, to consider the expert psychiatric evidence; and

iv) Finally, to explain my conclusions on the evidence in more detail and set out my findings on the assessment of damages.

Background and Events since 2011

23. Inevitably, I will have to be selective.
24. Focussing on the pre-April 2011 material, there are some entries over the years in her GP records when the Claimant complained of being depressed or under stress but these must be put into context. She suffered a series of miscarriages. She had hirsutism. In 2003 and 2004, she was falsely accused of theft by a patient and was off work for a period. In 2008 she was concerned for her second son, Jake, who had not started to talk and was seeing a speech therapist.
25. From 2001 onwards, she was though holding down a responsible job as a solo-responder. In this role she was regularly exposed to difficult and distressing situations.
26. There is a series of entries in her medical records in the period leading up to April 2011 culminating in a referral, at the Claimant's request, to the Occupational Health Department (OHD) for support and assistance. These are an indication of the stress that she was under. Some of it related to incidents at work, and there are indications in the records that she felt that she was being put at risk, and insufficiently supported by her employers. Some of it related to family circumstances – her son, Jake, who was being assessed and thought to be autistic, the health of her parents, the death of two much-loved family members.
27. The OHD referral asked for guidance as to what might be done by LAS as her employers to assist and support her, and whether she was likely to be off work due to ill health in the future.
28. In the immediate aftermath of the incident, the Claimant saw her GP on the 21^st April 2011. The GP note reads –

"Seen in A & E. ? CO poisoning. Unhappy with how they are dealing with it, feels they are covering it up. Also son Jake diagnosed with global development delay and ? Autism. Finds it difficult to cope at the moment. Has taken annual leave, has counsellor appointment on 28^th April.

Comment: Low mood and anxiety. Try Fluoxetine 20mg od. Stay off work. Best to come in before going back to work."

29. On the 8^th June 2011, the Claimant was seen by a nurse in the Occupational Health Department. The note of the consultation includes the entry – "Had a lot of personal problems over the past year. States that the breaking point was when she had the carbon dioxide (sic) incident in April 2011". The note includes the observation – "Symptoms of anxiety started 3 -4 weeks all the classic symptoms both mentally and physically" of anxiety. The symptoms are then listed.
30. On the 10^th June 2011, the nurse reported to the Defendant, that the Claimant

"…describes symptoms of depression, anxiety and panic attacks. She reports symptoms of low mood, low self-esteem and not being able to sleep or concentrate on day to day tasks. At the assessment today she was clearly distressed, very tearful and exhibited symptoms of panic attacks…. She is presently not fit to return to work."

31. Mrs Kennedy did return to work three months later, at the end of September 2011. By then she had been off work, in all, for almost six months. She did not, though, return to front-line duties as a solo responder. There is some uncertainty about her role during the initial period after she returned to work, but from January 2012 until July 2012 she was seconded to CARU (Clinical Ambulance Research Unit), and I am satisfied that she was at all times working in a back room administrative role.
32. Her secondment to CARU was temporary, and the Claimant knew that in July 2012 she would have to return to work as a solo responder. In March 2012 she made an unsuccessful application for a post as an acting duty station officer. Had she been successful this would have kept her away from frontline duties.
33. There are a number of relevant medical and OH records in this period. These indicate that the Claimant was not fully recovered and that she was experiencing headaches, finding it difficult to concentrate and worrying that she had suffered some memory loss or brain damage.
34. On the 17^th July 2012, there was an HR meeting with the Claimant. The note of the meeting records –

"Off the road for 15 months sick and restricted duties. Confidence gone. A couple of months ago begged not to be sent back on the road….Saw consultant…. He says I am suffering from PTSD. Got myself into a state. Ask….to let me be the dogs body, make tea and cover admin."

35. In the period from July to December 2012, there are further relevant entries in the medical and OH records. During this period the Claimant was working as a solo responder but appears to have been struggling to cope.
36. A note of an HR meeting on the 20^th August 2012 records Mrs Kennedy saying-

"I have had a number of wobbles…. I have had lots of support…I can do this, I want to be here….Just give me this week. I will prove I can do this… I am getting stronger….I have never wobbled in front of a patient…. If you take me off you will undo what has happened."

37. She appears to have persevered for a number of weeks following that meeting, but on the 13^th November 2012 she again went off sick. A note in her GP records for the 3^rd December 2012 reads –

"…has identified the trigger for the anxiety relating to her present role in the car on her own for 12 hours. Employer changing the rota for patient to go into the ambulance with colleague starting in January 2013, asking for sick note until the end of the year."

38. In January 2013, special, but temporary, arrangements were made, as envisaged in the GP's note, for the Claimant to work on the same rota as a colleague who was a friend and whom she felt would understand and support her; an arrangement known as "ghosting". Such arrangements normally last for only about six months, but in Mrs Kennedy's case it was allowed to last for much longer.
39. Whilst this arrangement was in place, the Claimant appears to have coped better, but she was continuing to receive OH counselling and there is a report, dated the 12^th December 2013, which outlines what the counselling had involved. This included discussion about the varied impact PTSD can have on an individual. It refers to the Claimant having begun "to put together a narrative after the traumatic incident (the carbon monoxide poisoning)", and describes her as having "shown high levels of courage and determination to make sense of what had happened to her and the very real impact it has had on her life".
40. There is, also, an email from the counsellor to OHD dated the 15^th April 2014, which refers to serious concerns about the Claimant being "emotional and chronically stressed" and hyperventilating on the phone.
41. By this time, changes in the rostering of ambulance crews were in the offing. These made the continuance of the ghosting arrangement impossible. After Stephanie Adams informed the Claimant that the ghosting arrangement had to end, the Claimant went off sick. This was on the 23^rd June 2014. Four days later she saw her GP. The note of the consultation reads-

"Stress at work, ongoing changes at work and issues, incidents, not coping…her mother said patient has no home life because she works lots of nights and often tired….

Comment: …work is causing lots of stress. To discuss with employer if job can be modified long term while her family are young."

42. The Claimant wrongly believed that she had been singled out, and on the 30^th June 2014, Stephanie Adams emailed her assuring her that this was not so and that the end of the arrangement was necessary because of changes in working arrangements.
43. Arrangements were made for the Claimant to be assessed on the Defendant's behalf by Dr Hashtroudi, a consultant in Occupational Medicine. His consultation note includes the following –

"Can't work as a solo responder any more, gets very anxious. Been working with a close friend to enable her to continue working, colleague had a very good understanding and coped with her mood changes and outbursts.

Memory not good, hard to recall new things.

Very emotional and can have outbursts, no real cut off in her brain re anger.

Frustration with all things happening to her.

Things changed and she couldn't work with another technician, so it had to come to an end, the LAS therapist was working to put things in place, manager suddenly pulled the plug in July which unsettled her.

Was apprehensive and anxious to come here today, feels like a guinea pig, doesn't want to explain everything all over again to new people, becomes very emotional.

O/E emotional, frequently needed to take deep breaths for few seconds, initially difficult to get going but then better history, agitated.

Imp: fit only with adjustments…."

44. Dr Hashtroudi reported on his examination in the following terms-

"In brief she was exposed to a high level of carbon monoxide in 2011 at work. This resulted in pretty severe migrainous attacks. Later on, she noted some troubles with retaining new information and also to keep her emotions at check. As a result she has significant trouble to work in new environment and with new colleagues who do not know her well, are not used to her mood changes and outbursts. The latter may result in confrontation and poor dynamics between the two, which will cause further anxiety. She has been having treatment under your care with good results. I trust you are aware that she has considered legal action and the case is still being discussed between the two parties. This is important because it will add to her already high level of anxiety, until the case is concluded one way or the other^[1].

I understand that she was working as an EMT for the past 18 months teamed with a stable crewmate which she found enormously helpful. This arrangement had to come to an end, as I understand, which has triggered her most recent relapse and the resultant sickness absence"

45. Dr Hashtroudi went on to make a number of recommendations, of which the main one was that the Claimant should work alongside a stable crewmate to develop a good professional rapport and that this should be someone well aware of, and able to tolerate, a reasonable degree of emotional swings and outbursts.
46. He concluded by saying that he was only prepared to authorise her return to work if his recommendations were implemented. He reiterated the same opinion in a further report dated the 12^th December 2014.
47. LAS felt unable to implement these recommendations and, on the 27^th January 2015, following a Capability Hearing, the Claimant was given notice of termination of her employment to take effect on the 14^th April 2015.
48. She has not worked since.

The Claimant

49. I had the opportunity to form an assessment of Mrs Kennedy whilst she gave evidence on the afternoon of the first day of the hearing and the following morning, and whilst she sat in court at other times during the proceedings flanked by her husband and her mother.
50. She is, plainly, a person with a significant and genuine psychiatric illness. When she first entered the witness box, she was making a considerable effort to keep herself under control, but she was plainly stressed and anxious. In answer to many questions from Mr Stagg, she said that her memory was affected and she could not remember. On Tuesday morning she lost her self-control on two occasions. On each occasion she erupted in frustration and anger and needed time out of court to regain her composure. Mr Stagg had to re-shape and curtail his cross-examination in consequence. After she had given evidence, I noted that whilst sitting at the back of the court, she was at times shaking uncontrollably, and her husband and her mother would try to calm her with only limited success. She did not stay in court for all of the proceedings and was mainly out of court on the final two days.
51. Her outbursts in court were consistent with other incidents referred to in the evidence when she lost her temper on a plane when there was a change of seating, and in the waiting room of her GP surgery.
52. In my view it is significant that when she returned to work, she was reluctant to go back to her old role as a solo responder and was provided first with an office job, and then accommodated with a role "ghosting" another employee, whom she trusted and who understood her. When she was informed in 2014 that this arrangement was going to have to end, the news appears to have had an immediate impact on her and she reacted to it by believing that she was being singled out.
53. There are other features of her presentation that may be significant when assessing her psychiatric condition and its causes.

a. She has maintained the belief that her exposure to CO has affected her brain and caused memory loss and caused or exacerbated her renal problems. As to her renal problems she has been assured that there is no connection. As to her concerns about her brain function, these have been supported until a late stage of these proceedings by the opinion of her toxicological expert, Dr Walker. He based his opinion on the mistaken belief that the period of exposure was greater than it in fact was, which was itself based upon the Claimant's graphic account of the incident, and not on the independent vehicle movement records. He now says that, whilst not excluding the possibility of some organic brain damage, he cannot say, on a balance of probabilities that this has occurred.

b. There is a significant element of employer blame in her presentation. In my view this colours her account of the incident, and the responsibility that she feels the Ambulance Service bears for her condition. With justification, she is angry that she was sent out in a vehicle that was not properly maintained. It was, also, an important factor in her reaction in 2014 when she was informed that the ghosting arrangement had to end.

c. Over the five years since the incident, her GP has treated the Claimant's condition conservatively with anti-depressants. There has been no referral to a consultant psychiatrist or the Community Mental Health team. Further, although breach of duty was admitted as early as January 2012, she has been involved in on-going assessment of her condition and litigation for a protracted period. It is well-recognised that this can hamper and delay recovery as mentioned in a number of the medical reports.

54. In summary, Mrs Kennedy is a person with a vulnerable personality and complex presentation.

The Expert Psychiatric Evidence

55. Professor Ron and Professor Dolan have provided lengthy reports. Both have comprehensively reviewed all the material.
56. They provided a joint statement in June 2016, and there is a large measure of agreement between them. Unfortunately, they approached the matter at that time when it appeared that Dr Walker's opinion was that the Claimant may have been sufficiently exposed to CO to have sustained enduring brain dysfunction. Where they differed was in its attribution were this to be the case; Professor Ron attributing it to CO poisoning, and Professor Dolan considering that CO exposure was not a causal factor.
57. They have both had to reconsider their opinion in the light of Dr Walker's change in position.
58. Although there is a large measure of agreement about the Claimant's pre-existing psychiatric vulnerability and the stress factors to which she was subject at the time of the incident in April 2011, the experts disagree as to their significance in her subsequent presentation. Professor Dolan maintained, both in the joint statement and in his evidence, that the Claimant has a fluctuating affective disorder attributable to her vulnerability to a range of stresses, of which the incident was only a small part, and not causative of her presentation after her return to work in October 2011. He attaches importance to the fact that she worked normally from then until 2014, and says that the deterioration in her psychiatric condition, then and since, cannot be attributed to her experiences in the incident in April 2011.
59. He also says that, in his opinion, the Claimant does not satisfy the diagnostic requirements for PTSD.
60. Professor Ron considers that the CO poisoning incident was of much greater importance in the Claimant's presentation. Her view is that it was a potentially life threatening event, and even if the exposure was not sufficient to cause lasting brain damage, it was the sort of incident that can have a profound effect on someone, especially someone with a pre-existing vulnerable personality. Even someone, without such vulnerability would be given cause to think that they could so easily have lost consciousness and never woken up. In Professor Ron's opinion it would be a particularly disturbing event for someone like Mrs Kennedy.
61. Professor Ron's opinion is that the Claimant's presentation since the incident is consistent with a diagnosis of PTSD, that the condition can fluctuate and be affected by external factors, and that the decision to terminate the ghosting arrangement in 2014 triggered an immediate relapse in her symptoms of PTSD.
62. The two professors are both highly experienced and able, but I found Professor Ron's evidence to be the more persuasive. She was thoughtful, careful, and considered in the manner in which she gave her evidence. I found it revealing that Professor Dolan had misread two entries from the 1990s in Mrs Kennedy's medical records, and on the basis of them had expressed the view in the report of their joint meeting that they supported his diagnosis. When taken to the records, though, he had to concede that he had given them undue weight. My impression was that he had fallen into the trap of coming to his conclusion and then going back to find material to support it.
63. He sought to quibble as to whether the Claimant satisfied the diagnostic criteria for PTSD, but when taken through the criteria, point by point, he was forced, to concede that, depending on what view one took of the Claimant's account of her symptoms, it was possible to conclude that the criteria were met.
64. One of the features that he questioned was whether the Claimant had experienced recurrent distressing nightmares related to the incident, but, in the psychiatric report of Dr Howard, who saw the Claimant in September 2013, there is reference to her describing to him "awful nightmares in which she would see herself lying next to the response car with colleagues coming to find her." She also described other nightmares involving harm to her children or her children being left without her. She told Dr Howard that these nightmares had lessened in frequency and intensity but still recurred at times of stress.

Discussion

65. It is trite law to say that a tortfeasor must take his victim as he finds him. Mr Stagg has sought to argue that the Claimant's pre-existing symptoms were such that, whilst the incident on the 12^th April 2011 may have acted as a trigger, if it had not been that event, something else is likely to have happened anyway in the near future with the same result.
66. I do not accept that argument. In my view what is significant is that the Claimant had demonstrated the fortitude in the past to cope with other stress factors in her life, and she did so, also, after she returned to work in September 2011. In the period from then until the termination of her employment, there are entries of unpleasant and distressing incidents at work, with which she coped.
67. What is a consistent pattern from April 2011 onwards is her loss of confidence in her ability to work on her own or as a member of a team unless that was with someone who knew her well and in whom she could trust.
68. The incident was the "straw that broke the camel's back". There is a continuum from then until the termination of the Claimant's employment because the Defendant felt unable to implement the recommendations of Dr Hashtroudi.
69. It cannot, in my judgment, be said that from when she returned to work in September 2011, or from some subsequent date, her symptoms were no longer referable to the incident. But for it, she would have continued in her employment and continued to cope with the stresses in her life in the way that she had in the past.
70. I think the position was well summarised by Dr Howard in his report. Having reviewed the material, he said –

"It is my view that at the time of the accident in April 2011 Mrs Kennedy was leading a normal, stable working, domestic, social and recreational life, was essentially in good physical health and although she had shown some evidence of anxiety and depression in the face of stress in the past, there is no reason for thinking that when the accident occurred she was at risk of developing any significant psychiatric disorder in the absence of some new major intercurrent source of stress."

71. In my judgment, the Claimant's condition is properly classified as PTSD consequent on the CO poisoning incident. What is unfortunate is that her symptoms have become entrenched and are likely to have been prolonged and exacerbated by the uncertainty of litigation.
72. Mr Stagg sought to argue, on the basis of the decision in KR v Bryn Alyn (Holdings) Ltd [2003] EWCA Civ 84 that it was appropriate to make an apportionment between the psychiatric harm that the Claimant would have suffered in any event and the harm that she has suffered in consequence of the CO poisoning incident. The Bryn Alyn case, though, concerned someone who was already psychiatrically damaged and then suffered further psychological harm in consequence of his abusive treatment in a residential home. There the psychological injury was divisible and apportionment of the damages was possible. This is a wholly different case on its facts. In Bailey v Ministry of Defence [2008] EWCA Civ 883 and Dickens v O2 PLC [2008 EWCA Civ 1144 the Court of Appeal said that where the causative event made a material contribution and where the injury to which it leads is indivisible, apportionment "across the board" is inappropriate (see in particular the judgment of Smith L.J. in Dickens).
73. This principle has recently been endorsed by the Privy Council in the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4. Lord Toulson quoted, with approval a passage from Professor Sarah Green's book, Causation in Negligence ^[2]–

"It is trite negligence law that, where possible, defendants should only be held liable for that part of the claimant's ultimate damage to which they can be causally linked…It is equally trite that, where a defendant has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes…."

74. In my opinion, the present case is, though, not so much a material contribution case as a simple "but for" case; but for the event on the 12^th April, it is unlikely that the Claimant would have suffered a major psychological disorder in the foreseeable future.
75. Professor Ron and Professor Dolan were in agreement that there is still a reasonable prospect of successfully treating the Claimant's condition, and that she ought to be referred by her GP for specialist treatment to include Cognitive Behavioural Therapy (CBT). CBT will involve between twelve and eighteen sessions stretching over a period of about a year. If the treatment is successful, the Claimant should be able to resume work, but in a less stressful form of employment.
76. There was a small difference of opinion between Professor Ron and Professor Dolan as to when the Claimant should be fit enough to resume work. Professor Ron thought the best case scenario was a gradual return to work over a period of about eighteen months. Professor Dolan suggested a slightly shorter period. Both noted that the Claimant had experience in a wide variety of work before joining the ambulance service.
77. Predictions of this sort involve a degree of crystal ball gazing, and, equally, there is a lot of uncertainty as to the level of earnings the Claimant may be able to achieve compared with what she would have been earning in the Ambulance Service. The Court often has to do the best it can on limited information, and this is such a case.
78. As I indicated at the close of submissions, I consider that, following treatment, the Claimant ought to be fit enough to return to employment after two years and that she should be able to earn £16,000, which, on current figures, is £8,660 less than she would have earned if her employment with the Defendant had continued. I also indicated that I proposed to assume that she would have retired from the ambulance service at age 60. I consider this to be appropriate and not a higher age of up to 67 contended for by Mr Stephenson, because of the exacting nature of the job and the Claimant's pre-disposition to stress.

Assessment of Damages

General Damages

79. The parties are in agreement that the Claimant falls within the moderately severe bracket for PTSD under the 13^th edition of the Judicial College Guidelines. This ranges widely, from £17,500 up to £45,500.
80. The commentary to the guidelines states that most awards are between £22,000 and £28,500. The Claimant contends for an award of £30,000, the Defendant for one of £25,000.
81. The award should reflect the fact that some five and a half years have elapsed since the incident and that the Claimant remains significantly disabled. With treatment, over the next two years, there should be a considerable improvement in her condition, but her experiences will always be with her and make her more vulnerable to stress and psychological trauma.
82. I propose to make an award by way of general damages in the sum of £28,000.
83. There is a large measure of agreement on other heads of claim save for future loss of earnings.

(a) Future Loss of Earnings

84. The Claimant's case is that the Court should adopt the conventional multiplier/multiplicand approach and apply the Ogden Tables (Seventh Edition 2011).
85. In calculating the "but for" earnings, Mr Stephenson submits that the undiscounted multiplier is 11.91, and that the appropriate reduction factor (RF) is 0.81. This produces a multiplier of 9.65 to apply to the multiplicand of £24,660. This produces a total of £237,969.
86. From this must be deducted the appropriate figure for actual earnings. The multiplicand is £16,000. Mr Stephenson submits that in arriving at the multiplier, the Claimant should be treated as disabled, and the reduction factor calculated by reference to Ogden Table D. Mr Stephenson contends for an RF of 0.42. Applying 0.42 to 11.91 provides a multiplier of 5 and produces a figure of £80,000.
87. The net figure on Mr Stephenson's calculations is, therefore, £157,969.
88. Mr Stagg makes a number of alternative submissions. His primary contention is that the imponderables for the Claimant's future are such that the Court should reject the multiplier/multiplicand approach and make a Smith v Manchester award. He suggests that a figure of £100,000 would meet the justice of the case, but it is not clear how he has arrived at this figure.
89. His fall-back position, if the multiplier/multiplicand approach is used, is to submit that the Claimant should not be treated as disabled, or only partially disabled. There is a small difference between his calculations and those of Mr Stephenson in relation to the "but for" earnings multiplier^[3], but the major difference is in respect of the calculation of the multiplier for the actual earnings. Mr Stagg argues for a lower RF of 0.8 or 0.7 (using Table C) or 0.55 (using Table D).
90. It was WH Auden who said "thou shall not sit with statisticians"^[4]. As the Ogden tables become more sophisticated and seek to provide an answer for every scenario, there is a danger that in the drive for mathematical precision we lose sight of the fact that the object of the exercise is to provide fair compensation for an uncertain future. Mathematical precision is an unattainable goal.
91. Jackson LJ considered in detail Tables A – D and the application of the "disability" criterion last year in the case of Billett v Ministry of Defence [2015] EWCA Civ 773. At paragraph 94 of the judgment, he observed –

"Some of the bands used in Tables A-D are, of necessity, extremely wide.

Disability, as defined in paragraph 35 of the Explanatory Notes, covers a very broad spectrum."

92. He referred to the Health and Disability Survey 1996 -7. This measures severity of disability on a scale from 1 to 10, where 10 denotes the greatest severity. He noted that 42.9% of those classified as disabled fell within categories 1 to 3, and only 13.2% into the most disabled categories 8 to 10.
93. In Billett, the judge at first instance (Mr Andrew Edis QC, as he then was) described the claimant's condition as qualifying as a disability "but only just". He awarded damages for future loss of earnings of £99,062.04 using a multiplier/multiplicand approach. The Court of Appeal reduced his award to £45,000. Jackson L.J. arrived at this figure by the Smith v Manchester route, but cross-checked the figure by reference to Ogden but adjusting the RF from that adopted by the trial judge.
94. At paragraph 94 of his judgment, Jackson L.J. said –

"In order to bring a sense of reality to the present exercise, it is necessary to make a swingeing increase to the RF shown in Table B (.54). But what should that increase be? Determining an appropriate adjustment to the RF is a matter of broad judgment. In the present case that exercise is no more scientific than the broad brush judgment which the court makes when carrying out a Smith v Manchester assessment."

95. Every case must turn on its own facts. The situation in Billett was very different to this case. Mr Billett was in work, pursuing his chosen alternative career as a lorry driver with virtually no hindrance from his physical disability. Mrs Kennedy, in contrast, is currently unfit for work, and the prognosis for a psychological disability is less easy to predict than most physical disabilities.
96. It is no doubt a reflection of this uncertainty that causes Mr Stagg to advocate a large Smith v Manchester award.
97. In my view the Court should not depart from the multiplier/multiplicand approach unless, as in Billett, it throws up an obviously unreal result.
98. Turning to the detail of counsels' figures, the difference in the "but for" multiplier stems from the way in which they have treated the first two years. Mr Stephenson has not applied a discount factor to these two years and added two years to the Claimant's age at trial to calculate the multiplier for the remainder of the period to age 60. Mr Stagg has not done this. He has calculated the multiplier in the conventional way from trial.
99. I prefer Mr Stagg's approach. The allowance for the first two years at full rate is properly reflected in the calculation of the actual earnings to age 60. The figure for "but for" earnings is, therefore £223,123.68.
100. The position in calculating the actual earnings though, is different. Mr Stephenson is right, in my view to adjust the multiplier to make allowance for the first two years.
101. In fixing the RF, I agree with Mr Stagg that an RF of 0.42 is too pessimistic. The RF in Table C would be 0.81. I propose to adjust the RF to 0. 62. This is midway between the two tables. It produces a figure of £112,195.20.
102. The future loss calculation, accordingly, becomes – (£24,660 x 11.31 x 0.8 = £223,123.68) – (£16,000 x 11.31 x 0.62 = £112,195.20) = £110,928.48. This happens, coincidentally, to be remarkably close to Mr Stagg's suggested Smith v Manchester figure, but to it must be added the figure for the first two years – (£24,660 x 1.95 = £48,087. This produces a total of £159.015.48.
103. In addition, I propose to make the small allowance sought by Mr Stephenson for loss of congenial employment. This seems to me to be appropriate in this case because the Claimant worked for the ambulance service for roughly thirteen years, and, plainly, found her work fulfilling.

(c) Pension Loss

104. Mr Stephenson accepts that there was no information in support of this head of claim until a late stage of the proceedings. The calculations that are available give a figure of in the region of £68,000. They have, though, been made on the basis of a retirement age of 67 and make no allowance for the prospects of future pensionable employment. Mr Stephenson is, therefore, forced to accept that the figure must be substantially reduced to take account of these factors and that no revised figures are available. In his written submissions, he invites the Court to make an award of £30,000.
105. Mr Stagg submits that, if the Court is prepared to make any award, it must be approached with caution. He points out that all employment now gives rise to an entitlement to a workplace pension, and submits that any award should not exceed £10,000.
106. I have to do the best I can on inadequate information. There, plainly, is a loss, and I do not consider that this can adequately be compensated by an award of £10,000. I conclude that an award of £25,000 is appropriate. It equates to about one quarter of the award for future loss of earnings, which appears to me to be fair and just.

Summary on Damages

107. I gratefully adopt and complete the schedule prepared by Mr Stagg. This is set out below.

	Claimant	Defendant	Court
PSLA	£30,000.00	£25,000.00	£28,000
Loss of congenial employment	£2,500.00	£0.00	£2,500
Interest on general damages	£1,359.00	£1,132.50	£1,268.40
Past loss of earnings	£42,438.74	£42,438.74	£42,438.74
Past care and assistance	£13,114.29	£13,114.29	£13,114.29
Past travel expenses	£64.00	£64.00	£64.00
Miscellaneous items	£230.00	£230.00	£230.00
Interest on past losses	£804.20	£804.20	£804.20
Future loss of earnings	£167,976.00	£100,000.00	£159,015.48
Loss of pension	£30,000.00	£0.00	£25,000
Future care and assistance	£4,563.00	£4,563.00	£4,563.00
Future treatment	£3,000.00	£3,000.00	£3,000.00
GROSS TOTAL	£296,049.23	£190,346.73	£279,998.11
CRU deductions	£4,940.99	£4,940.99	£4,940.99
NET TOTAL	£291,108.24	£185,405.74	£275,057.12

1.

108. There will, accordingly, be judgment for the Claimant in the sum of £275,057.12
109. There will be no need for attendance by the parties and counsel when judgment is handed down, unless there are ancillary matters on which agreement is not possible.
110. Mr Stagg indicated to me at the close of submissions that there may be an issue on costs in relation to the costs incurred in investigating the question of whether the Claimant had suffered organic brain damage. This part of the Claimant's case was abandoned at a late stage before trial when Dr Walker changed his opinion.
111. I have heard no submissions on this, and would not wish to pre-judge the matter. I simply make this observation, namely, that there may well be a distinction to be drawn between allegations unnecessarily raised by a party which are either abandoned or fail at trial, and the due investigation of the origins and causes of an injured party's symptoms and disability.
112. Finally, I would wish to thank both counsel for their assistance during the trial and in the preparation of detailed written submissions on quantum.

Note 1   Proceedings were commenced on the 7th April 2014 and the Particulars of Claim are dated the 4th August 2014.    [Back]

Note 2   Hart Publishing 2015, Chapter 5 p97    [Back]

Note 3   Mr Stagg’s calculation is £24,660 x 11.31 x 0.8 = £223,123.68)    [Back]

Note 4   “Under which Lyre, A Reactionary Tract for the Times”, 1946    [Back]