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

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

12 – Kamau Mungai Gakuya

73

Particulars of Injury (as above)

No.

‘…which he attributes to sand and dust’

1)        This pleads TC12’s opinion about the attribution of his loss of eyesight. It is not a pleading of injury or (for that matter) causation. It is at best superfluous.

1) This pleads the fact [9-184; §60 and 62]. This is a matter of submission: whether what the TC thinks and feels about his injury and its cause is part of his injury.

Amendment refused.  It is not arguable that TC12’s erroneous attribution of loss of eyesight to sand and dust can sound in damages.

2)        Further and in any event, there is no support in the medical evidence for any eye injury due to sand and dust. Ms McGuinness found vision and acuity in TC12’s left eye to be normal [9-206], and that it was ‘not possible to comment on when he lost the vision in his right eye or why’ [9-207]. TC12 did not mention any eye injury to Ms McGuinness.

2) as above.  The evidence is that he thinks he is partially blind due to being exposed to sand and dust §62; [9-184]. The extent to which this sounds in damages is a matter of submission.

‘…when being told to “cover”’:

1)        This is not a pleading of injury, but rather seeks to amend TC12’s ‘liability’ case, to attribute a pleaded assault/battery (being hit on the head) to circumstances in which it had not previously been pleaded to have taken place. The originally pleaded allegation of being ordered to ‘cover’ is at §35 of the IPOC, relates to TC12’s alleged treatment at Embakasi, and makes no assertion that TC12 was hit on the head.

2)        As such there is no jurisdiction now to permit this amendment, which should have been served by 16 June/21 July (§4.a of the 19 May 2017 order) and ruled upon in July/August.

3)        It falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) There is a  grammatical error in the original drafting of the  Particulars of Injury which the amendment sought to rectify. The words “when being told to “cover” are not pursued. The amendment sought is: “He was regularly hit the Claimant with clubs his heads on his head with clubs”.

For the avoidance of doubt, this refers to §25 and §30 of the IPOC where he refers being hit on his head with clubs during roll call/ head count at Nakuru Prison and “in the same way” at Gilgil Prison.

The TC does also refer in his evidence [33-2710] to being hit “to hurry up” during the roll call that he calls “being told to cover” in Embakasi (as referred to at  §35 IPOC). This is not being pursued as an amendment and Cs apologise for any confusion by conflating “being told to cover” and the “rollcall/headcount”.

2) as above.

3) as above and as per response to D’s introduction at para 6 above.

The Claimants do not seek this amendment but seek the amendment “He was regularly hit, the Claimant his clubs his head on his head with clubs.”  This is permitted for the reasons given by the Claimants, namely tidying up of a grammatical error.

‘The Claimant has scars on his head from being required to carry buckets of soil on his head.’

1)        This asserts a previously unpleaded injury (scarring to the head due to carrying buckets).

2)        The amendment therefore falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

3)        It is a ‘liability’ amendment and there is no jurisdiction now to permit it. It should have been served by 16 June/21 July (§4.a of the 19 May 2017 order) and ruled upon in July/August. The originally pleaded allegation of carrying buckets is at §34 of the IPOC and makes no assertion about TC12 using his head, let alone any adverse effects to his head.

1) Accepted that scarring has not been referred to as a specific injury before, but the amendment should be permitted nonetheless because D was aware that the Claimant was complaining of scarring, from the time of the medical evidence and cross examined the Claimant on his injury: [33- 2642 to 33-2643].

2) see above.

3) The injury is from the carrying of buckets. The carrying of buckets is pleaded. §73 states that “as a result” of what happened, he suffered injury and the injury is then set out.  The amendment should be permitted.

There is no prejudice: both counsel and J inspected the C’s head when he pointed to the area where he said scars existed [33-2643]. The court will ultimately hear submissions on whether they were visible or not.

It is fair to say that although D alluded to this injury, they did not specifically XX on it [33-10224].

The prejudice to the Claimant is that he will not recover for the full extent of his injury; the prejudice to the Defendant is that they may ultimately be found liable for an injury of which they were fully aware.

Amendment refused:

(i) Scarring or any injury to the head has not been pleaded before.  Neither has the allegation of being required to carry buckets on the head.

(ii)      This is a physical injury which could and should have been pleaded.  It is an additional (not a lesser) pleading.  It falls squarely within paragraph 28 of the April 2017 judgment.

(iii)   The Defendant did not cross-examine Ms. McGuinness in relation to the scarring and was, in the light of the pleading then before them, entitled not to do so.  There is, therefore, prejudice though lack of prejudice does not, on the authorities, mean that a very late amendment will be permitted.

(iv)   The fact that the Claimant gave evidence as to this is insufficient.

‘…but he suffers from what he describes as flashbacks when. They amount to distressing memories where he recalls the impact of detention upon his life and his belief it had led to a life in poverty.’

1)        The allegation that TC12 experiences ‘what he describes as flashbacks’ merely pleads TC12’s alleged terminology (as a non-medically-qualified non-English speaker) for an aspect of his psychological experience. There is no support for the assertion that the word ‘flashbacks’ at §50 of TC12’s statement [9-183] should be taken to ‘amount to distressing memories’.

1) The evidence from the TC is that he suffers “flashbacks” [9-183] although he also says he does not [9-129], which may well reflect the difficulty in interpreter – mediated evidence in an elderly vulnerable witness; in any event, the amendment is in accordance with the agreed amendment to TC 31.

Further,

the amendment is to a lesser allegation: it makes clear that “flashbacks” cannot be sustained as a term of art as Prof Fahy does not support any psychiatric diagnosis [33-9839 – 33-9840]. Prof Fahy does, however, agree that he described witnessing terrible events, including seeing a man commit suicide [33-9837]. In the absence of a formal diagnosis, what he saw and any effect on him that the court finds on submission, can sound in damages. 

Amendment refused.

(i)       Notwithstanding that generally a lesser allegation is permitted by way of amendment, (paras 7-8 of main judgment) this one is refused.

(ii)     The Court accepts the Defendant’s submissions (1) and (2).  The evidence does not support the amendment.  As the Defendant says there is no support for the assertion that the word “flashbacks” should be taken to “amount to distressing memories”; this is particularly the case when one takes account of Professor Fahy’s report as quoted in the Defendant’s submission number 2 and the fact that TC12 himself (9-129) said he did not suffer flashbacks.   The only mention is in his witness statement which pre-dates 9-129 and the detailed medical evidence.

2)      The psychiatric evidence is anyway to the clear effect that TC12 does not suffer from flashbacks or distressing memories. Prof Fahy’s report at [9-236] states: ‘I asked Mr Gakuya about any disturbing memories, flashback experiences or other disturbed thoughts. He said that it had never disturbed him as such. What would be gained by it? He said that he had not experienced bad dreams. He was a strong man. He never allowed his mind to go back. He looked forward. He coped well.’ See also 9-237: ‘He denied any history of intrusive memories of events at the prisons, flashback-type experiences or recurring dreams.

2) the effect of the evidence is a matter of submission. The court is ruling on the permissibility of the amendment, not on whether any damages are ultimately recoverable or how much.

3)      If, despite the disavowal of psychiatric injury, these amendments seek to assert or support some form of allegedly compensable injury, such an allegation is not already pleaded in the Particulars of Injury.  The amendments therefore fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

3) PD Part 16.4 requires “brief details of the claimants personal injuries” with medical evidence attached. The order of    14.3.14 §15 [2-16] did not require C’s to attach medical  reports to the IPOCs. It has always been clear that the evidence of the jointly instructed experts will be referred to. The amendment gives brief details of those factors  suffered by the TC that will found a submission. 

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

13 – Ndogo Gatutu

56

Particulars of Injury (see above)

No

‘He was hit with canes and whipped and other implements, as pleaded herein.’

1)   The new text does not make sense in the context of the sentence as a whole.

1) “herein” means as pleaded in the IPOC ( perhaps “hereinabove” might have been better insofar as “herein” has been taken only to refer to §56).

Source of “other implements”:

§14: refers to gun butt;

§15: refers to whip or cane, sword and spear; this was an agreed liability amendment (as per the Revised Annex to Sixth WS of Andrew Robertson- Table of Disputed IPOC amendments (as served, revised) at p.23).

Amendment permitted for the reasons given in the Claimants’ response.  The amendment should be “…and hit with other implements…”.

2)   It is anyway at best superfluous; at worst impermissible (because outside the scope of the April ruling and/or introducing fresh injuries). To the extent that the particulars of injury already refer to injuries and the implements that caused them (e.g. ‘stabbed on his thigh with a spear’) there is no need for the amendment; to the extent that Cs now seek to introduce injuries caused by implements that were previously not pleaded permission must be refused.

2) This provides further particularisation and clarification. The other implements are pleaded in the agreed liability amendment at §15 of the amended IPOC.

See above.

‘injured on his elbow,’ and ‘…right elbow, …’

1)   TC13 told Mr Payne-James that he did not know what had caused the scar to his right elbow (see §6.f of the Pt35 responses at [10-217]). There is no account in TC13’s pleadings or evidence of tortious injury to the right elbow.

1) C alleges regular beatings i.e.  §14: “regularly beaten” at Langata; “beatings happened on a daily basis”; “vicious assaults”; §16: Indiscriminate beatings”;

He alleges beatings at Manyani: §19; §24: regularly beaten at Manyani;

§56 Partics injury: C  states he was “assaulted on multiple occasions” says he was “beaten like an animal”; He was ““hit in multiple areas of his body”.

A scar on the right elbow was identified on medical examination [10-202]; it is non – recent trauma; it is not in a site of typical accidental injury [10-217].

The amendment is consistent with existing pleading of multiple beatings and is within the scope of the permitted medical amendments; it amounts to particularisation based on medical evidence.

His absence of knowledge about how the scar to his elbow happened is not determinative of causation issue where he was ubiquitously assaulted.

a)      Amendment allowed.  Although there are slight distinctions as referred to by the Defendant in oral submissions this comes within the type of amendment permitted in respect of TC31 in the April 2017 judgment i.e. it would have been consistent with being beaten ferociously.  TC13 did give evidence of this injury at 33-1836 as Mr Fetto helpfully pointed out. 

2)   D was entitled to rely upon what TC13 said to Mr Payne-James about the right elbow, together with the absence of any account in TC13’s pleadings or evidence of such injury.

2) as above and further, D XX on this injury at [33-9345]; C was not aware of the injury identified by the doctor on his right elbow. That being the case, he could not have mentioned it before, and it took the expertise of the doctor to identify it and recognise it as a non – recent, non – accidental –type injury.

3)   The amendments have been made without TC13’s instructions, in spite of what TC13 said to Mr Payne-James and without any opportunity for D to cross-examine TC13. D is prejudiced.

3) D did have the opportunity to XX; see XX at 33-9345 where causation was addressed by D and confirmation of photographic evidence.

4)   Neither party questioned Mr Payne-James about TC13’s right elbow. D is prejudiced in that regard also.

4) not correct: see XX at 33-9345 where D refers to the right elbow scar, causation was addressed by D and confirmation obtained of photographic evidence.

5)   Further and in any event the amendments are wholly unclear – there is no account of how TC13’s elbow was allegedly ‘injured’.

5) the submission will be that this was probably during an episode of the vicious and ubiquitous beating that TC 13 describes and, having been viciously and ubiquitously beaten up, he didn’t identify or remember that his right elbow had been cut. The judge can rule in due course.

‘cut on his left arm with a sword’ and ‘…left arm, …’

1)   These assert an injury not already pleaded within the Particulars of Injury and should not be permitted. The Particulars of Injury make no reference to cutting injuries.

2)   D relied upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury when it agreed the amendment to move text (referring to this alleged incident) to §15 of the IPOC. It continues to rely upon them.

1) See §15 of the Amended IPOC; this was an agreed liability amendment. In their schedule in this respect, D simply said “yes” to the amendment and did not say it was on the basis of any “undertaking”;

See: the Revised Annex to Sixth WS of Andrew Robertson- Table of Disputed IPOC amendments (as served, revised) at p.23.

2) As above and see general response at para .

This is permitted as, although not replicated originally in the Particulars of Injury, the full allegation was in the body of the pleading (originally IPOC paragraphs 25 and 26, now IPOC paragraph 15).

‘beaten on his right hip with a gun butt’ and ‘…hip, …’

1)   These assert an injury not already pleaded within the Particulars of Injury and should not be permitted. TC13’s Particulars of Injury make no reference to being struck with any implement other than a cane or whip.

2)   D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) This refers to the allegation at §14 of the IPOC as originally pleaded; that paragraph refers to being hit with a gun butt and being beaten on his right hip with a gun butt.

2) as above.

Permitted as above.

‘…left lower leg, …’

1)   This asserts an injury not already pleaded within the Particulars of Injury and should not be permitted. The Particulars of Injury make no reference to an injury to the left lower leg.

2)   D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) C alleges regular beatings i.e.  §14: “regularly beaten” at Langata; “beatings happened on a daily basis”; “vicious assaults”; §16: Indiscriminate beatings”;

He alleges beatings at Manyani: §19; §24: regularly beaten at Manyani;

§56 Partics injury: C  states he was “assaulted on multiple occasions” says he was “beaten like an animal”;

The amendment is in line with TC 31 already ruled upon (“beaten ferociously all over his body, including to the scrotal area”.

2) see above and under response to Ds introduction para 6.

Amendment refused.  Had there been any evidence from the Claimant as to being assaulted on the lower leg, this would have been within the type of amendment permitted for TC31 in April 2017.  However it is conceded that there is no such evidence.

3)   Further or alternatively, there is no allegation anywhere in the IPOC of an incident in which TC13’s left lower leg was injured (as accepted by Mr Payne-James – see §2.a of his Pt35 responses [10-214]). This is a ‘liability’ amendment and there is no jurisdiction now to permit it. It should have been served by 16 June/21 July (§4.a of the 19 May 2017 order) and ruled upon in July/August.

3) as above.

4)   Further and in any event the amendment is wholly unclear – there is no pleaded account of how TC13’s left lower leg was allegedly injured.

4) as above. Amendment should be permitted and will liability for injury be a matter for submissions. 

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

14 – James Mwaura

54

Particulars of Injury (see above)

No.

‘As set out in the medical evidence¹, he was caused scarring and he developed a mass on his left forearm after it was struck during an assault.’

1)   This asserts injuries not already pleaded within the Particulars of Injury and should not be permitted. The Particulars of Injury make no reference to any physical consequence of the alleged assaults other than ‘pain’.

2)   D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) TC 14 describes intense beating during interrogation §17; repeated indiscriminate beating at §24 and §34; beating beaten “at will”;

His Partics of Injury accordingly plead - § 54  “beaten on multiple occasions”.

The scarring/ mass is supported by the medical evidence: [11-138]; scars [11-140 onwards] and D had opportunity to XX and did XX – 33-9392 – 9395.

The amendment is in line with TC 31 already ruled upon (“beaten ferociously all over his body, including to the scrotal area”.

2) as above; response to D’s introduction para 6.

Amendment refused.  This is not in line with the amendment permitted for TC31 in the judgment of April 2017.  The Court accepts the Defendant’s response comments.  Also, the Claimant himself gave no evidence of these injuries.

Specific injuries of scarring and a mass on the left forearm have never been pleaded before and the Defendant was entitled not to cross-examine on them.   

3)   Without prejudice to the above:

a)  The allegation of ‘scarring’ is wholly unparticularised and unclear. It fails to specify which scars are sought to be made the subject of the claim, and which are alleged to have resulted from which assaults.

b)     The allegation regarding a mass on TC14’s left forearm is also unparticularised and unclear in that it gives no details about the ‘assault’ by which it was allegedly caused.

c)      It is too late for those important matters concerning the circumstances, including time (not least whether pre- or post-June 1954) and place, in which specific injuries were caused, to be pleaded. They would amount to ‘liability’ amendments which there is no jurisdiction now to permit. Such particulars ought to have been served by 16 June/21 July (§4.a of the 19 May 2017 order) and ruled upon in July/August.

d)     It would moreover be unfairly prejudicial to permit such amendments now. D has no opportunity to cross-examine TC14 further, and there was no such specific pleading to inform the cross-examination of Mr Payne-James.

3) as above and:

a) C is required to give “brief” details of injury as per PD 16PD 4(2) and is entitled to refer and rely on jointly instructed medical examination and experts, upon which the J will hear submissions.

b) as above.

c) as above. There are no new allegations – the injury arises out of the multiple beatings he has already described in his IPOC.

d) This is per permitted amendment for TC 31; in any event, no prejudice: D was aware of the allegations of multiple beatings and could have addressed them both with TC and expert.

Prejudice to TC is that would not recover for the full extent of his injury.

‘The Claimant has suffered psychological symptoms as set out in the medical evidence but which do not satisfy the criteria for a recognized psychological injury, the legal effect of which is a matter of submission; he still experiences what he describes as flashbacks of his ordeal and ruminates on the abuse he suffered.’

1)   This amendment amounts to a pleading that TC14 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC14’s (unspecified) ‘psychological symptoms’ is ‘a matter of submission’. That is at best inchoate and at worst wholly unclear.

1) This is an amendment to a lesser allegation and removes an allegation of recognised psych injury; the insertion of “what he describes as” is as per the same amendment to TC 31 which was not objected to by D;

Further, in any event, he does refer to what he describes as flashbacks in his evidence [11-117 §47], being  particularly triggered when he sees a gun, and the experience he describes can sound in damages. 

Amendment permitted for the reasons given in the main judgment at paragraphs 7-8.  See also TC9 above.

2)   As noted above, the symptoms are unspecified; the pleading simply directs the reader to ‘the medical evidence’. That is grossly insufficient and prejudicial.

2) PD 16 4.2 requires “brief” details of injury; the pleading refers to the medical evidence. This is sufficient. The court will hear submissions in due course.

3)   The allegation that TC14 experiences ‘what he describes as flashbacks’ merely pleads TC14’s alleged terminology (as a non-medically-qualified non-English speaker) for an aspect of his psychological experience, again without any particulars of the intended meaning. (TC14 did not mention ‘flashbacks’ to Dr Davidsson, whose opinion is that he has none [11-185].)

3) as above. The fact that Dr Davidsson did not consider he had flashbacks has led to the amendment to make the concession. However, the TC has given evidence on his experience of flashbacks, as indicated above [11-117; §47].

4)   If, despite volunteering that TC14 has not suffered ‘recognised psychological injury’, these amendments seek to assert or support some form of compensable injury, such an allegation is not already pleaded in the Particulars of Injury.  The amendments therefore fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

4) A proper concession has been made on the evidence; this amendment is in line with TC 27 and TC 31. 

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

16 – Marion Nkirote M’Ichoro

33

Particulars of Injury (see above)

No.

‘There is a permanent indentation on her head and a scars from the wound to on her neck and behind her right ear¹.’

1)   This asserts an injury not already pleaded within the Particulars of Injury and should not be permitted. The Particulars of Injury refer to an indentation to the head and a (non-specific) scar to the neck. The proposed amendment remains unspecific about the neck scar and refers to a further scar behind the right ear.

2)   D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

3)   The text in the footnote apparently seeks to justify this addition by asserting that the two scars should be seen as (equivalent to) one. That assertion has no real prospect of success. The footnote clearly refers to two separate scars (it avers that there is a ‘gap of intact skin’ – of unspecified length – between them). The scars are said to be ‘on the same line’, but there is no pleading or evidence to indicate that they might, let alone probably were, both caused by a single blow.

1) It is pleaded that she had scarring to her neck; the scar is found on medical examination  [12-120 – 12-121]; behind her right ear is in line with the scar on her neck. Scarring is already pleaded, it clarifies the position of the scarring as per the medical evidence. It is a permitted amendment as per TC 31.

2) as above under response to D’s introduction at para 6.

3) The success of any  assertion on submission does not denote the permissibility of the amendment. This type of amendment falls within those permitted by the court’s ruling.

Amendment permitted.  These injuries arise from the allegation in paragraph 12 of the IPOC.  The medical evidence is sufficiently clear to provide a basis for the amendment.  The Defendant’s allegations about lack of specificity are not accepted.  As clarified in submissions, the Claimant seeks to add the scarring described at paragraphs 48 and 50 of Ms McGuinness’ report to the scarring (already pleaded) at paragraph 49 of that report.  Although the impression from the Claimant’s witness statement and photographs is that there is one scar, the totality of the scarring now sought to be pleaded is all very proximate.  It is, in conceptual terms, a minor extension to the present pleading.  The Defendant’s points about the provenance of the scarring as now pleaded are a matter for submissions.  There is no real prejudice to the Defendant and the overriding objective is in favour of allowing this amendment.

‘she suffers  from  chronic  post-traumatic  stress  disorder’

1)   The Particulars of Injury originally described TC16 as having suffered ‘psychological injury’ which was particularised as comprising flashbacks and ruminations on past events.

2)   The amendment now seeks to allege that TC16’s injury is PTSD. The original pleading was confined to an injury with symptoms of flashbacks and ruminations, together with mentioning upset due to a raised facial scar, i.e. well short of the components of PTSD under the DSM or ICD criteria.

3)   The amendment accordingly seeks to introduce a new injury into the Particulars of Injury, and so falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

4)   The delay in amending the pleading to include this specific named psychiatric injury is egregious.

Amendment refused.  A psychological injury was pleaded but

(a)    it was not specified;

(b)   the symptoms  pleaded do not amount to what would be a diagnosis of PTSD. 

Professor Abel, from paragraph 28 onwards of her expert report, relies on more symptoms for the diagnosis c.f. TC5 (and 20 below);

(c)  See paragraphs 9-13 of main judgment.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

17 – Mwangi Matheri

75

Particulars of Injury (see above)

No.

‘…although the Claimant believes that he is probably a few years older than this.’

1)   The IPOC should set out TC17’s case.

2)   This amendment is self-contradictory and confusing. By it, Cs’ lawyers seek to continue asserting, on TC17’s behalf and without his instructions, a date of birth that TC17 believes is wrong, but at the same time to assert that TC17 believes his pleaded date of birth is wrong.

3)   The amendment should either clarify TC17’s case or should not be permitted.

1) The pleading does set out his case. The pleading has always been  that he is “about” [age]; the amendments clarifies his case in accordance with his evidence [13-186] and D’s XX [33-1873; submission on the effect of any lack of clarity (which is not accepted exists) can be made by D in due course.

Amendment permitted.  The pleading does set out the case.  The case is that he is aged about 78 years having been born around 1936 although the Claimant (himself) believes that he is probably a few years older than this.  The Claimant’s representatives are entitled to plead in this manner. 

‘The Claimant has suffered symptoms as set out in the medical evidence but which do not satisfy the criteria for a recognized psychological injury⁴; he still experiences what he perceives as flashbacks to being slashed on the arm and ruminates on the abuse he suffered. The legal effect of this is a matter for submission.’

1)   This amendment amounts to a pleading that TC17 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC17’s ‘symptoms’ is ‘a matter of submission’. That is at best inchoate and at worst wholly unclear.

1) This is an amendment to a lesser allegation and removes an allegation of recognised psych injury; the insertion of “what he describes as” is as per amendments to TC 31 which was not objected to by D;

Further in any event, he does refer to what he describes as flashbacks in his evidence [13-198] which feature the torture he experienced at Manyani and how he sustained the cut on his arm. 

A concession has been made to remove a recognised psychological injury, but what he experiences can still sound in damages and will be the subject of submission.

Amendment permitted.  See paragraphs 7-8 of the main judgment. 

As to the “flashbacks” amendment, see the comments on TC9 and TC14 above.

2)   The allegation that TC17 experiences ‘what he describes as flashbacks’ merely pleads TC17’s alleged terminology (as a non-medically-qualified Kikuyu speaker) for an aspect of his psychological experience, without any particulars of the intended meaning. (TC17 did not report any flashbacks to Dr Davidsson, who concluded that there was ‘no evidence of flashbacks or avoidance behaviour’ [13-254].)

2) as above. An appropriate concession is made but D has ignored how what he says he suffered might otherwise sound damages.

3)   If, despite volunteering that TC17 has not suffered ‘recognised psychological injury’, these amendments seek to assert or support some form of compensable injury, such an allegation is not already pleaded in the Particulars of Injury.  The amendments therefore fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

3) as above. This is as per the permitted amendments for  TC 27 and 31.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

18 – Mwangi Macharia

34 (new 37)

And/or alternatively the Claimant has:

b. An  action  for  breach  of  statutory  regulation  giving  rise  to  a  civil  right  of action;

No. the text struck through, coloured in red, should be coloured green.

Agreed; will change to green in final version.

Note general points above: a review has found some additional errors of this nature and they will be rectified. 

Permitted on the agreed basis of changing to green in final version. 

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

19 – James Irungu Gathunga

54

Particulars of Injury (see above)

No.

‘The Claimant was assaulted on multiple occasions as set out above herein and in particular:’

1)   D objects to the words ‘…as set out above herein and…’. That wording seeks to add to the Particulars of Injury any assaults not already alleged within them but ‘set out above’ within the IPOC.

2)   It therefore asserts injuries not already pleaded within the Particulars of Injury and should not be permitted.

3)   D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) yes, herein is intended to refer to the assaults pleaded in the IPOC;

Part 16 PD4.3 only requires “brief” pleading of personal injuries.

The need to serve a medical report with the IPOC was dispensed with by order [2-19 §15], so no further detail by reference to medical evidence was required.

The reference to the body of the IPOC in the Partics of Injury regularises the pleading.

There can be no prejudice where the assaults are already pleaded within the IPOC.

2) as above.

3) as above and as per response to D’s Introduction at para 6.

Amendment refused.  The Particulars of Injury, although required to be “brief”, do require the relevant injuries to be pleaded.  This could be construed as change of case in that it now purports to claim for unspecified injuries by general reference to the body of the Particulars of Claim.  

‘The Claimant was slapped very hard across his face at Langata camp causing him to fall to the ground and lose consciousness.’

1)   The fall to the ground and (possibly consequential) loss of consciousness amount to an injury or injuries not already pleaded within the Particulars of Injury and should not be permitted. No injury due to falling nor any head injury has been pleaded. At most the relevant Particulars of Injury assert a mechanism of potential (unspecified) injury.

2)   D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) this is as per the permitted amendment for TC 31. To be slapped very hard across the face is consistent with being caused to fall down and lose consciousness. It clarifies the effect of the very hard slap.

It was reported in the medical evidence: Mr Heyworth [15-201] and  TC 17’s first statement [15-179];  addressed  by D in  cross examination [33-8023]

2) as above and per response to D’s Introduction at para 6.

Amendment permitted.  This is within the permitted amendment for TC31.  Paragraph 16 IPOC refers to the TC being “knocked unconscious” and see his witness statement paragraph 14.  The Claimant specifically puts this amendment as a momentary loss of consciousness.  

3)   It is anyway incorrect that D cross-examined Mr Heyworth ‘on’ the fall and head injury. The transcript passage referenced in fn2 entailed a mere recital of history set out in Mr Heyworth’s report with a view to confirming its source. D would be prejudiced in not having further opportunity to cross-examine Mr Heyworth if this amendment were permitted.

3) D had opportunity to cross examine and themselves raised the issue without qualification in that instance; D can ask further Part 35 questions of Mr Heyworth if necessary.

‘…one of his finger thumb⁶ bones was damaged the day his hand was cut at Kamagutu chief’s camp as stated at paragraph 38 above.’

1)   This asserts an injury to the thumb, which has not already been pleaded within the Particulars of Injury and should not be permitted.

2)   D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) This is in line with the permitted amendment to TC 31; His hand was injured (cut) during a beating; he raised his hand to protect himself – a digit was damaged, the clarification is that it is the thumb rather than the finger.

Clarification has been provided by examination by the medical expert.

2) As above per response to D’s Introduction para 6.

Amendment refused.

This is not an amendment in line with that permitted to TC31.  The Claimant has alleged that his hand was cut.  His pleaded case and evidence was that a finger bone was damaged.  Importantly TC19 has never given any evidence whether written or oral saying that his thumb had been injured.  If this was a possible error then it should have been clarified and amended prior to TC19 giving evidence. 

3)   Further and in any event, TC19 gave no written or oral evidence asserting that his thumb had been injured. D is prejudiced in having no opportunity to cross-examine him further.

3) D had the opportunity  to XX on his hand injury as TC himself raised the issue of his hand injury [33-2811]; they chose not to do so.

Further, D did  XX the medical witness extensively on this injury and did so in order to undermine the injury: [33-8030 – 33-8035].

D also asked questions about the thumb injury in Pt 35 questions: [15-222] relating the injury to the hand to the injury to the thumb (not the finger). This indicates D was prepared to accept that an injury to the  thumb was sustained  during the incident that cut the hand. i.e. no distinction was drawn by D.

That is sufficient to mitigate any prejudice.

‘The Claimant has suffered symptoms as set out in the medical evidence but which do not satisfy the criteria for a recognized⁷ psychological injury; he suffers from what he describes as flashbacks and which Dr Davidsson recorded as nightmares8 and ruminates about events that he feels have changed the course of his life. The legal effect of this is a matter for submission.’

1)               This amendment amounts to a pleading that TC19 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC19’s ‘symptoms’ is ‘a matter of submission’. That is at best inchoate and at worst wholly unclear.

1) This is an amendment to a lesser allegation and removes an allegation of recognised psych injury; the insertion of “what he describes as” is as per amendments to TC 31 which was not objected to by D;

Amendment permitted, save for the words “and which Dr Davidsson recorded as nightmares”.

In general this amendment is permitted for the reasons given in paragraphs 7-8 of the judgment.  (Re: “flashbacks” see the comments on TC9 and TC14).  However the Court accepts the Defendant’s point 3 that there is no support for the assertion that word “flashbacks” at paragraph 45 of TC19’s statement should be equated with what Dr Davidsson recorded as nightmares.   Indeed, as Ms Ruck helpfully assisted, ICD10 Diagnostic Criteria for Research F43.1B are suggestive of nightmares being distinct from flashbacks.

2)             The allegation that TC19 experiences ‘what he describes as flashbacks’ merely pleads TC19’s alleged terminology (as a non-medically-qualified Kikuyu speaker) for an aspect of his psychological experience, without any particulars of the intended meaning.

3)             There is no support for the assertion that the word ‘flashbacks’ at §45 of TC19’s statement [15-185] should be equated with what Dr Davidsson recorded as ‘nightmares’. The text of §45 makes no reference to nightmares or dreams.

2) He refers to what he describes as flashbacks in his evidence [15-185 §45] and that he feels bad when he remembers the suffering he underwent.

A concession has been made to remove a recognised psychological injury, but what he experiences can still sound in damages and will be the subject of submission.

Dr Davidsson’s evidence supports the amendment  [15-245 to 246]; D was able to cross examine [33-8941 – 33-8949].

3) This is accepted. The amendment is not pursued.

4)          If, despite volunteering that TC19 has not suffered ‘recognised psychological injury’, these amendments seek to assert or support some form of compensable injury, such an allegation is not already pleaded in the Particulars of Injury.  The amendments therefore fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

4) what the TC experiences can still sound in damages and will be the subject of submission.

RE undertaking: See  under response to Ds introduction para 6.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

20 – Elizabeth Wangui Waithaka

6

The Claimant suffers poor health. The Claimant still experiences pain to her hands, knees, shoulders, legs¹ and back, caused by the beatings she suffered during detention, interrogation and forced labour, detailed herein. She took the oath twice [33-1953], the first time before Emergency was declared.  

1 Ref Ms McGuinness at para 36 and 43 of med report [16-160].

Not agreed as to the addition of ‘legs’ and the associated footnote.

1)      The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)     The amendment pleads an injury to the legs of TC20 that had not previously been pleaded.  At no prior stage had TC20 alleged that she suffered from any compensable physical injury in respect of her legs.

3)     The delay in amending the pleading to include this specific named physical injury is egregious. 

Accordingly:

4)     The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. 

1) §42 refers to being his on back, legs and hands when being assaulted by policemen. §6 is a general statement of her injury under “Background details”. The reference to “legs” appears to have been missed out of §6. It is not a new amendment and was also dealt with in the medical evidence [16-160].

2) as above. It was pleaded.

3) no delay; as above.

4) as above.

Amendment refused.

(i)     Paragraph 42 of TC20’s IPOC does allege that she was hit on her back, legs and hands.  However there is no allegation at present in paragraph 6 to the effect that the Claimant continues to suffer pain in her legs. 

(ii)  Therefore it is not correct to say that anything other than suffering bruising on her legs has been pleaded so far (in paragraph 42).

(iii)    Also TC20 has never given evidence of continuing leg pain.

42

Particulars of Injury

Not agreed.  See further below.

42

During an interrogation, the Claimant was physically assaulted by policemen such that she fell unconscious², in the presence of British officers.

2. Ref med report at [16-160] and evid in cross examination by C’s counsel [33-10262]

Not agreed.

1)      The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)     On any sensible understanding, the amendment pleads a new head injury to TC20 that had not previously been pleaded.  The amendment is therefore a liability amendment asserting the existence of a new cause of action.

3)     At no prior stage had TC20 alleged that she suffered from any compensable physical injury in respect of being rendered unconscious through physical assaults as described.  Indeed, the new allegation of having been rendered unconscious is conspicuously absent from §§20-22 IPOC.

4)     The delay in amending the pleading to include this specific named physical injury is egregious. 

Accordingly:

5)      The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment.

1) This amendment is within the scope of the permitted amendment to TC 31; she alleges a physical assault, with beating to various areas of her body (as pleaded and described).

2) She does not allege a head injury. The pleading is not that she was knocked unconscious. It is that the beating was such that she fell unconscious. This is dealt with in XX by the medical witness: 33-10261.

3) as above.

4) no delay .

5) as above.

Amendment refused.  There is no previous pleading of loss of consciousness nor anything in TC20’s witness evidence to support it.  

42

As pleaded at Paragraph 6 herein, the Claimant suffered joint pain from the beatings and continues to do so; for the avoidance of doubt, she says that such pain was from the time of the beatings onwards and she has not had a pain-free day since³.

Not agreed.

1)      The submissions in respect of the amendment to §6 above are repeated, with the effect that no particulars of injury ought properly to be permitted in respect of the new allegation of TC20’s experience of pain in her legs.

2)      Further and in any event, the passage of the oral evidence of Ms McGuinness cited does not support the amendment that “for the avoidance of doubt, she says that such pain was from the time of the beatings onwards and she has not had a pain-free day since”.

1) Permitted amendment as per TC 31; she describes beatings “during detention, interrogation and forced labour” (§6); these were vicious beatings e.g. §20: so many blows she could not tell who was beating her; it was so extensive a beating, she thought she was going to be killed. At §18: huge amount of physically demanding forced labour during which time she was repeated to repeated physical assaults. Etc. To allege that she suffered joint pain from these beatings without a pain-free day since them,  is clarification in accordance with the permitted amendment to TC 31.

2) the effect of Ms McGuinness’ evidence is a matter for submission.

(i)The first part of the amendment (omitting the word “joint” as the parties agree) i.e. “As pleaded at paragraph 6 herein, the Claimant suffered pain from the beatings and continues to do so” will be permitted, save that it is clear that the amendment to the legs has not been allowed and therefore this continuing pain does not apply to the legs.

(ii)  The remainder of the amendment is refused.  TC20 gave no evidence to support this. 

42

The Claimant suffered post-traumatic stress disorder⁴;

4 Professor Mezey, Answers to Part 35 Questions [16-215].

Not agreed.

1)           The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)             The amendment pleads a specific named psychiatric injury that had not previously been pleaded by TC20.  TC20 has at no prior stage alleged that she suffered from any compensable psychiatric/psychological injury. The symptoms described fall well short of the components of PTSD under the DSM or ICD criteria.

3)             A fortiori and in any event, the original pleading did not contain even a general pleading of ‘psychological injury’. 

4)             The delay in amending the pleading to include this specific named psychiatric injury is egregious. 

Accordingly:

5) The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment.

The submission in relation to TC 5 is repeated.

1) This type of amendment was not envisaged in March (see Response to D’s introduction at para 6 above). 

2) TC 5 is unsophisticated. It takes an expert to elicit injury as Professor Mezey did and which lead to her diagnosis at 16-215; whether she is correct and TC 20 satisfies the relevant criteria is a matter for submission.

3) as above.

4) the application to amend was made as soon as reasonably practicable after the expert had given evidence;  it was a proportionate decision to amend at that time rather than prior to the experts giving evidence.

5) As above, the scope of the samples provided were necessarily limited; overall, the prejudice to the Claimant is that she will not recover for  a psychiatric injury that she has in fact suffered; the prejudice to the Defendant is that they may have to compensate her if ultimately found liable.

Amendment refused.

(i)     See the Court’s response in relation to TC5 and paragraphs 9-13 of the main judgment.  Also the Test Claimant gave no evidence of psychological symptoms, save about difficulty in waking up in the morning and memories coming back (oral evidence). 

(ii)              As regards the Defendant’s point 6, namely that there is no “stable basis” for pleading the alleged injury, whatever the criticism of Professor Mezey’s response in the Part 35 questions, nevertheless she did diagnose PTSD.  Therefore whether or not the Claimant suffered from this psychiatric injury would, had the amendment been permitted, have been a matter for final submissions. 

6)      For the reasons pleaded at §62.c. of the Amended Individual Defence [16-43], there is no stable basis for pleading the alleged injury.  In her expert report, Professor Mezey concluded that there is no evidence that the Claimant is currently suffering from Post-traumatic Stress Disorder, a Depressive Disorder, or any other mental illness or disorder [16-206, §81].  She further concluded that there was ‘no evidence’ for a lifetime diagnosis of Post-traumatic Stress Disorder, Depressive Disorder, or any other mental illness or disorder [16-206, §820.  The conclusion in the Part 35 Response referred to in footnote 4 of the amendment was reached in the absence of any further evidence or examination of the Claimant.

6) the effect of the evidence, if the amendment is permitted, is a matter for submission.

Overall, the prejudice to the Claimant is that she will not recover for  a psychiatric injury that she has in fact suffered; the prejudice to the Defendant is that they may have to compensate her if ultimately found liable. D was able to (and did) cross examine in detail on the criteria and the diagnosis reached [33-8533 – 33-8540].

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

21 – Nelson Njao Munyoike

39

Particulars of Injury (see above)

No.

‘The Claimant has suffered psychological symptoms related to his experiences in the Emergency and the traumas he was exposed to¹ but has not suffered a recognised psychological injury, the effect of which in law is a matter for submission… The Claimant suffers what he perceives as² flashbacks and ruminates about how he was physically assaulted during the State of Emergency.’

1)   This amendment amounts to a pleading that TC21 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the effect in law’ of TC21’s ‘symptoms’ is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear.

1) Not pursued as to:

The Claimant has suffered psychological symptoms related to his experiences in the Emergency and the traumas he was exposed to¹ but has not suffered a recognised psychological injury, the effect of which in law is a matter for submission…

The Claimant will reinstate the original wording and whether the diagnosis is made out will be a matter for submission.

Amendment pursued as claimed and permitted.  See main judgment paragraphs 7-8.  See TC9.

As to the perception of “flashbacks” see the response to TC14. 

2)   The allegation that TC21 experiences ‘what he perceives as flashbacks’ merely pleads TC21’s alleged terminology (as a non-medically-qualified Kikuyu speaker) for an aspect of his psychological experience, without any particulars of the intended meaning. Prof Mezey’s opinion is that TC21 has not suffered flashbacks [17-175].

2) The Claimant suffers what he perceives as² flashbacks This is pursued; it is as per the amendment to TC 31 which D agreed. D has given no good reason for a different approach. The issue will be how the court should treat what TC 21 describes as “flashbacks” but which do not meet the criteria for a such in medical terms. This experience is not irrelevant and can sound in damages: the basis upon which it does so and the extent to which it does is a matter for submissions.

3)   If, despite volunteering that TC21 has not suffered ‘recognised psychological injury’, these amendments seek to assert or support some form of compensable injury, such an allegation is not already pleaded in the Particulars of Injury.  The amendments therefore fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

3) as above and as per  response to D’s Introduction at para 6.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

22 - Margaret Wanjiru Kimani

11

This was to prevent people from leaving or entering the camp; those who tried would suffer serious injury. She was removed to and detained in one place in Karirau.

Agreed.

Issue was taken with this amendment as a matter of caution in correspondence copied to the judge.  It is now agreed, without prejudice to D later making submissions as to the substance of the amendment.

Noted.

Amendment permitted as agreed.

17, 28, 33, 34, 41(3), and 45

village camp

Agreed.

Issue was taken with this amendment as a matter of caution in correspondence copied to the judge.  It is now agreed, without prejudice to D later making submissions as to the substance of the amendment.

Noted.

Amendment permitted as agreed.

18, 21 and 34

village camp

Agreed.

Issue was taken with this amendment as a matter of caution in correspondence copied to the judge.  It is now agreed, without prejudice to D later making submissions as to the substance of the amendment.

Noted.

Amendment permitted as agreed.

And/or alternatively the Claimant has:

This arises from transposition of the amendments, and is not an injury amendment.  D does not object to the additional deletion, but wishes to draw it to the attention of the Cs and the Court in case it is an error.

As per TC 5 [36]. It is not an error – it is related to the following sentence and should have been deleted. Tidying up.

Amendment permitted as agreed.

45

Particulars of Injury

Not agreed.  See further below.

45

The Claimant cannot sleep without the light on only sleeps with medication because she is traumatised by the events that she experienced, suffering flashbacks and intrusive thoughts. She takes medicine to help her sleep most nights; this amounts to a recognised psychological injury, namely current and lifetime Post Traumatic Stress Disorder together with lifetime Depressive Disorder.¹

1 Source: TC w/st confirms she suffered from flashbacks under heading psychological injury [18-145] and in the IPOC says flashbacks and intrusive thoughts without stating that this is claimed as a psychological disorder.  Mezey’s opinion (received after the original IPOC served) is that TC is suffering from Current & Lifetime PTSD and Depressive Disorder [18-218] & [18-219], so the diagnosis is provided.  

Not agreed.

1)        The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)        The re-amendment now seeks to allege that TC22’s sleeping with medication, flashbacks and intrusive thoughts “amounts to a recognised psychological injury, namely current and lifetime Post Traumatic Stress Disorder together with lifetime Depressive Disorder”. Plainly, that is inaccurate: the symptoms described fell well short of the components of PTSD under the DSM or ICD criteria or a Depressive Disorder.

3)      As such , the re-amendment pleads specific named psychiatric injuries that had not previously been pleaded by TC22.  TC22 has at no prior stage alleged that she suffered from any compensable psychiatric/psychological injury.

4)        A fortiori and in any event, the original pleading did not contain even a general pleading of ‘psychological injury’.  

5)        The delay in amending the pleading to include this specific named psychiatric injury is egregious. 

Accordingly:

6)      The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment.

1) it was already pleaded that she was traumatised and was experiencing flashbacks and intrusive thoughts, needing medicine to sleep, §28 WS refers [18-145]. The amendment  clarifies that those symptoms pleaded give rise to a formal diagnosis.

See above response to D’s introduction at para 6.

2) It is acknowledged that on this occasion the words “psychological injury” in general terms are not pleaded, but the symptoms she describes are so pleaded and are in her WS §29 [18-145]; PD 16 4.2 requires a brief description of personal injuries; those symptoms describe mental trauma. The TC has pleaded the basis of what has been now identified as a formal diagnosis; neither TC nor her representatives are psychologically or psychiatrically qualified; the need for medical evidence attached to the IPOCs was dispensed with and the parties jointly instructed medical experts. D was able to XX on the diagnosis and the “building blocks” for it at length, as well as the interaction between the various components of the diagnosis: 33-8690 – 8715.  The accuracy of the diagnosis will be a matter for submission.

3) As above.

4) As above.

5) dealt with in response to D’s Introduction, para 11. The amendment application was made at an appropriate and proportionate time.

6) as above. 

In any event, no prejudice to D, as opposed to the prejudice to C who absent the amendment will not recover for her full loss.

Amendment in green refused.

See paragraphs 9-13 of the main judgment and the responses to TC5.

Although some psychological symptoms were pleaded, it was incumbent on the Claimants once the medical evidence was available in 2015, to make a clear allegation of psychiatric injury.  The symptoms pleaded did not amount to a diagnosis of such.  This is far more than the type of amendment permitted in April 2017.

The overriding objective does not permit exercising discretion to allow this amendment. 

Schedule of Loss, §1

The monetary equivalent, valued at the time by reference to the East African Shilling, of the Claimant’s home / possessions / lost livestock (including 4 cows and at least 2 goats and many chickens) / crops / land belonging to herself and her husband that were set alight and/or otherwise destroyed or stolen by Home Guards during the Claimant’s forced removal from her home.

This is an amendment that was overlooked previously.  The Revised Annex to Andrew Robertson’s 6^th statement made it clear that the Defendant disputed this amendment.  Unfortunately, the challenge to the amendment was omitted from the version of the schedule the Claimants supplied when setting out their position on the Defendant’s objections.  Hence it was neither discussed at the hearing on 19 July 2017 nor did it appear in the schedule to the Court’s judgment of 18 August 2017.  Whilst not an injury amendment, the parties have agreed that it be addressed by the Court at this stage in the proceedings.

Not agreed.

The amendment is inappropriate for an Individual Schedule of Loss, in that it rather than properly particularising the claim and narrowing the Individual Schedule of Loss, it reduces the level of particularity as to the number of animals in respect of which a claim is made by reason of its reference to “at least 2 goats and many chickens”. The amendment is such that the Court and the Defendant are no longer able to ascertain with any measure of certainty the animals in respect of which the claim is made.

Yes, it was overlooked by the parties.

It does not alter the case that she lost possessions. It clarifies the ownership of those possessions and what was lost. The amendment is in accordance with the TC’s evidence [33-2801:belonged “to her and her husband”;  “4 cows, 3 goats and many chicken”]; the extent of the loss is something the court will rule on in due course having heard submissions.

Amendment permitted.  This is almost de minimis.  To meet the Defendant’s objection, the amendment will be allowed save “3 goats” instead of “at least 2 goats”.  The court can take a view over the objection to the proposed amendment (in line with the evidence of TC22) that she lost “many chickens”.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

23 – Wagichugu Njuki

7.e.

Fifth oath: at home in Kiamwathi, Gatuu

Whilst not an injury amendment, the parties have agreed that this re-amendment to §7.e. be addressed by the Court at this stage in the proceedings.

Not agreed.

The amendment to 7(e) was objected to by the Defendant.  The re-amendment to TC23 was refused by the Court following submissions.  It should be deleted accordingly.

See Schedule attached to Jt 18.8.17. p.105; D objection to 7e was “in part”.  That part of the amendment re change of location that was not permitted (from a Chief’s camp to a punitive village) has been removed; all that has remained is the pleading of the 5^th oath and where it took place.  D did not object to 7a, b, c  and d which deals with oaths 1 to 4, nor f and g which deals with oaths 6 and 7, including where they took place.

Albeit not made clear  by D, it was assumed that the “part” of 7e that was not objected to was the part that referred to the fact of the oath taking place and where.

To remove reference to the 5^th oath makes the paragraph lack comprehension, when the TC was clear in her evidence that she had taken 7 oaths  [33-2176] and the pleading makes reference to all but number 5.

Allowed for the reasons given by the Claimants.

8

In or around 1955, the Claimant ­_was removed from her home in Gatuu, Kiamwathi

Whilst not an injury amendment, the parties have agreed that this re-amendment to §8 be addressed by the Court at this stage in the proceedings.  The Claimants have failed to identify as a re-amendment the inclusion of ‘Gatuu’, but for ease it is correctly set out in this Table. 

Not agreed:

The express basis of consent to the re-amendment of paragraph 8 at the amendment hearing was that it be consistent with the re-amendment at paragraph 5 that Kiamwathi was within Gatuu: “Kiamwathi, in Gatuu” [33-16582].  The effect of this re-amendment is, however, to maintain the confusion as to the relative sizes of Kiamwathi and Gatuu.

Agreed   that §8 needs to be consistent with §5, and the remedy is to strike through “Gatuu” in green.

The original §8 was pleaded “Gatuu, Kiamwathi”;

The proposed amendment (that the court was asked to rule on) was to strike through “Gatuu” in order to be consistent with §5  (D’s rehearsal of the para in this schedule does not show the strike through, it shows “Gatuu” in green).

See [33-16582] line 8 – 20. J raises point that §8 needs to be consistent with §5.

So: it is agreed that §8 should be amended consistently with §5, therefore it follows that “Gatuu” should be struck through, in green.

Allowed as “Kiamwathi in Gatuu.”

12

Detention & Forced Labour: Kianyaga Chief’s Camp

This is a re-amendment that was overlooked previously.  The Revised Annex to Andrew Robertson’s 6^th statement made it clear that the Defendant disputed this amendment.  Unfortunately, the challenge to the re-amendment was omitted from the version of the schedule the Claimants supplied when setting out their position on the Defendant’s objections.  Hence it was neither discussed at the hearing on 19 July 2017 nor did it appear in the schedule to the Court’s judgment of 18 August 2017.  Whilst not an injury amendment, the parties have agreed that it be addressed by the Court at this stage in the proceedings.

Not agreed.

1)      The Court has refused all contested amendments to TC23.  This re-amendment to TC23’s IPOC was objected to by the Defendant.  The re-amendment should have been refused.

2)      The effect of the re-amendment would be to leave certain key allegations, which are clearly intended to give rise to causes of action, materially unparticularised as to location. 

3)      The re-amendment is hopeless, and/or visits prejudice on the Defendant who will be unable to research and then respond to the substance of the allegation accordingly.

The Defendant repeats these submissions in respect of the corresponding re-amendment to §45(2).

Yes, this was overlooked.

Para 12 was not ruled upon.

1)The J  did not permit any disputed amendments and, in his reasoning, refers specifically to amendments relating to place of detention in Kianyaga (see  p.102 of Schedule to Jt 18.8.17); it follows that the reference to Kianyaga Chief’s Camp should be reinstated as per the original pleading.

2) as above

3) as above;

As per D, sub is repeated for §45 below.

Refused, as the Claimants now accept.

45(2)

(2) Caused, permitted, allowed or suffered the detention of the Claimant in intolerable conditions, that included extremes of temperature, hunger/starvation, thirst, sickness, gross overcrowding, a lack of sanitation and a pervasive atmosphere of violence, which put her health and safety in danger.  In particular, but without prejudice to the generality of the foregoing, the detention facility at Kianyaga had not been built when the Claimant arrived.  The Claimant was forced to sleep in open air, exposed to the elements, wearing only the clothes that she had been forcibly removed from her home in.  The Claimant was exposed to temperature extremes, with no shade by day and no shelter by night.  Sanitation facilities were woefully inadequate. Detainees were forced to scavenge for food and water, none being provided to them.  Detainees were not even provided with any or any adequate cultivable land to produce food, causing malnutrition and starvation.  The Claimant had the added fear of looking after her young children in these circumstances.

Not agreed.  As immediately above.

As immediately above.

Para 45(2) was not ruled upon. However, the J’s ruling did not permit any disputed amendments relating to place of detention. It follows that the reference to “at Kianyaga” should be reinstated as per the original pleading.

Refused, as the Claimants now accept.

49

Particulars of Injury

Not agreed.  See further below.

49

The Claimant is tormented by the memories of her painful ordeal. She has never recovered from the announcement that her husband had been killed. She experiences what she perceives as flashbacks of the trauma she was subjected to;

Not agreed.

1)      The relevance of the allegation as to TC23’s subjective perception of flashbacks for an aspect of her psychological experience is unclear. TC23 is a non-medically-qualified non-English speaker, and her own perceptions of flashbacks are clinically irrelevant accordingly.  The re-amendment should not be permitted accordingly.

2)      Without prejudice, to the extent that this averment is sought to be added to raise such an allegation (which is unclear for the reasons already given), then such an allegation is one not already pleaded in the Particulars of Injury.  The amendment would therefore fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) this is in accordance with the agreed amendment to TC 31. D has given no good reason why their approach is different. The issue will be how the court should treat what TC 23 describes as “flashbacks” but which are not so identified upon expert medical examination [§95 and §96; 19-252]; what she describes is not irrelevant and can sound in damages; the basis on which it does so and the extent to which it does so are matters for submission;

2) her mental torment and the symptoms of psychological disturbance are already pleaded; see response to D’s Introduction para 6.

.

This amendment would have been permitted (i.e. as to ‘flashbacks’) – see TC14 above.  However, there is no evidence from the Claimant, whether in her witness statement or oral evidence which supports flashbacks. 

Cf paras 9-13 of the main judgment and TC16 above.

she suffered a lifetime depressive disorder during her detention, currently in remission¹. The legal effect of this is a matter for submission.

1 Ref Prof Mezey [33-8741 – 8743]; [33-8752 – 8753].

Not agreed.

1)      The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)      The re-amendment pleads a specific named psychiatric injury that had not previously been pleaded by TC23.  TC23 has at no prior stage alleged that she suffered from any compensable named psychiatric/psychological injury. TC23 had failed to identify symptoms satisfying the DSM or ICD criteria for a lifetime Depressive Disorder.

3)      The delay in amending the pleading to include this specific named psychiatric injury is egregious. 

Accordingly:

4)        The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. 

1) mental distress was pleaded i.e. that she was tormented by memories and was experiencing flashbacks to trauma; the amendment  clarifies that those symptoms pleaded give rise to a formal diagnosis.

See above response to D’s introduction at para 6.

The formal diagnosis is consistent with the symptoms that are already pleaded, so within the scope of the judgment.

2) It is acknowledged that on this occasion the words “psychological injury” in general terms are not pleaded;  PD 16 4.2 requires a brief description of personal injuries; the symptoms pleaded describe mental trauma. The TC has pleaded the basis of what has been now identified as a formal diagnosis; neither TC nor her representatives are psychologically or psychiatrically qualified; the need for medical evidence attached to the IPOCs was dispensed with and the parties jointly instructed medical experts. D was able to XX on the issue including causation and did so at length [33-8726    33-8741];

The accuracy of the diagnosis will be a matter for submission.

3) no delay; dealt with in response to D’s Introduction, para 11. The amendment application was made at an appropriate and proportionate time.

4) as above. 

In any event, no prejudice to D, as opposed to the prejudice to C who absent the amendment will not recover for her full loss.

This amendment refused. 

See main judgment at paragraph 9-13 and comments on TC5 and TC22.

5)        The re-amendment asserts that ‘the legal effect’ of TC23’s ‘lifetime depressive disorder during her detention, currently in remission’ is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear.  It should be refused  accordingly.

5) Consistently with other pleadings, the “legal effect” refers to the amendment “She experiences what she perceives as flashbacks of the trauma she was subjected to”.

As per responses above, the court’s approach flashbacks where they are described, but they do not amount on expert examination to a psychiatric symptom per se, is a matter for submission. They are not irrelevant.

6)       Cross examination of the medical experts in respect test claimants’ injuries was expressly without prejudice to the submission that in the absence of a pleaded injury in the then IPOC, any physical and/or psychological injuries identified in the expert report/s formed no part of the test claimants’ claims.

7)       The evidential basis pleaded for the re-amendment to include an injury of ‘lifetime depressive disorder’ is passages of cross-examination.  Without prejudice to the Defendant’s submission that those passages do not support the re-amendment as asserted, they properly cannot form the basis for the re-amendment to include a new named psychiatric/psychological injury in view of the paragraph immediately above.

6) any prejudice relied on by D is, necessarily,  limited by their ability to cross examine.

7) the evidential basis is not limited to passages of XX, although it is correct that D was able to XX extensively; the diagnosis was made in the medical evidence [19-249 §86 and 87], upon examination by a jointly instructed medical expert.

Overall, no prejudice to D, as opposed to the prejudice to C who absent the amendment will not recover for her full loss.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimant’s response

Judge

24 – Magondu Muthumba

39

Particulars of Injury

No.

‘This placed him in a stressful situation… blood pressure increased.’

The relevance of this amendment is unclear.  Insofar as it is alleged that TC24’s heart rate and/or blood pressure experienced a transient increase as a result of the alleged events, there is no averment of any physical injury to TC24.  If and to the extent that this amendment is alleged to be relevant to the later reference to “symptoms of psychological disorder” then it is resisted for the further reasons given below.

The amendment is under the heading “Particulars of Injury”, §39 stating: “As a result of D’s alleged actions, the Claimant has suffered pain and injury …” so it is clear that this is being asserted as part of TC 24’s injury.

Fear of personal assault and fear as a result of witnessing the beatings of others is already pleaded:  the effect of that on him physiologically was dealt with in the written medical evidence of Mr Heyworth [20-129 §2] where he said stress during the emergency would have contributed to hypertension; D asked Part 35 questions of the expert related to this conclusion [20-137 §11] and it was further elicited and explored during the medical evidence by both parties: [33-8083 – 33 -8116]. The D was on notice at the time that an amendment may be sought in relation to TC 24.

Mr Heyworth did not maintain his evidence so far as early onset of  hypertension was concerned, but that does not mean that what TC24 suffered in terms of the physiological effects of fear was irrelevant.

The issue of whether this amounts to injury and is recognised in law,  is a matter of law and submission.

The Cs are not required to rehearse submissions. The issue is whether the amendment is permissible, being in accordance with the judgment 27.4.17.

C’s assert that it is permissible and in accordance with the judgment:

1) It is asserted as part of injury under the heading “Particulars of Injury” and “Assault/battery”, where it is alleged he has suffered pain and injury;

2) it is pleaded that he was in fear repeatedly;

3) the medical evidence indicates fear as a response to stress results in a biological response;

4) this response is well – recognised and results in a transient rising of blood pressure and heart rate;

4) TC 24 was aware of the biological effects: he describes living his life in in fear.

This amendment is analogous to that permitted by the amendment to TC 31. Being kicked in the scrotum is consistent with being beaten all over the body; being subject to a biological fear response (“fight or flight”) is consistent with being put in fear repeatedly.

Refused.  The proposed amendment is no more than the Claimants’ exposition of what they say is ‘fear’.  “Fear” is already pleaded.  Therefore nothing is gained by the proposed amendment.  It is in the circumstances evidence not pleading. 

He has not suffered a diagnosed recognised psychological disorder but described feelings of resentment and anxiety, and that his time in the camps was wasted, in common with other test claimants who had suffered symptoms of psychological disorder¹.  The legal significance of this is a matter for submission. 

1)            This amendment amounts to a pleading that TC24 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC24’s ‘symptoms of psychological disorder’ is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear.

2)           The reference to TC24’s “time in the camps” is not understood.  TC24 alleges that he was detained at ‘Kabare Post’ and then at a village (see §§14-30 of the IPOC).

1) The assertion is clear and based on Dr Davidsson’s conclusions [20-166]. What he experienced is not irrelevant and can sound in damages. The extent to which it does so is a matter of submission. The amendment is within what is already pleaded: the TC pleads his response to being put in fear in a village on multiple occasions; the amendment clarifies that experience. 

2) Yes, this should be “time in the village”. It is requested that the amendment be permitted in this form.

3)           In any event, TC24 has at no stage alleged that he suffered from any compensable psychiatric / psychological injury.  To the extent that this averment is sought to be added to raise such an allegation (which is unclear for the reasons already given), then such an allegation is one not already pleaded in the Particulars of Injury.  The amendment therefore falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

3) It is clearly not being alleged that he has suffered psychiatric psychological injury. But the extent to which the law should recognise what he describes as his injury is in issue. What he experienced is not irrelevant and can sound in damages.

RE undertaking: Cs refer to response to D’s introduction para 6.

4)             The allegation that TC24 ‘described feelings of … anxiety’ is in any event unsupported by the evidence.  The footnoted reference given is to the cross-examination of Dr Davidsson (not that of Mr Heyworth).  Dr Davidsson did not however state that TC24 described “feelings of… anxiety”.  That TC24 may have suffered from anxiety was a proposition suggested to him by Counsel for the Claimants as a result of TC24 having been prescribed Diazepam in 2013.  Dr Davidsson agreed that it was possible that TC24 had been prescribed that drug in 2013 for anxiety, but said that there were also other possible reasons for that prescription being given.  For the exchange, see 33-8959, line 8 to 33-8961, line 16. 

5)           TC24 was himself unable to assist Dr Davidsson with why he had been prescribed this drug (see report at 20-156).  When interviewed by Dr Davidsson in 2015, TC24 denied having any psychiatric symptoms (see 33-8961, lines 6-7).

6)  Nowhere in Dr Davidsson’s written or oral evidence, or for that matter the evidence of TC24 himself, is there any reference to TC24 experiencing or describing “feelings of… anxiety” or any attribution of such feelings to TC24’s experiences during the Emergency.  Further Dr Davidsson’s answer at 33-8963, lines 13-15, in which he noted that in contrast to TC24, other Claimants he had seen “had some other things too, like… anxiety symptoms…” directly contradicts the proposition that TC24 had symptoms of anxiety.

4) A footnote is missing. It should indeed be referenced to Dr Davidsson at [33-8961 –  33-8962]. Dr Davidsson’s evidence is clear that TC 24 suffered no recognised  psychological injury; but that he was in fear of being “beaten or tortured” if he refused to labour [20-158] and the reason he did not get beaten because he was “very obedient” [20-159].  To the extent that the court finds he did suffer, it can sound in damages.

5) Submissions will be made on the evidence in due course.

6) as above.

Submissions should not be rehearsed: the issue is whether this is included in what is already pleaded. TC 24 says he suffered injury and felt fear on multiple occasions. The effects of that fear are a permissible pleading and based on the medical and psychiatric evidence.

The prejudice to TC is that he risks being unable to recover for the full extent of any loss; the prejudice to D is absent: how the court treats TC’s injury is always going to be a an issue of law.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimant’s response

Judges Comments

25

60 (proposed 63)

Particulars of Injury (see above)

No

‘His mobility was impaired; he remained in pain and required the use of a mobility aid for around one year’:

1)   This asserts a previously un-pleaded injury in the form of impairment, long-term pain and duration of injury arising from the incident in which TC25 alleged that he was shot in the ankle.  TC25 gave no evidence of such an impairment / duration of impairment to the Court, despite this being entirely within his own knowledge.  Despite the Claimants having been put on notice in 2015 by the Defendant’s Part 35 Questions to Mr Heyworth and Mr Heyworth’s answers (see at 21-208 and 21-212), no amendment to the pleaded case was sought prior to TC25 giving evidence and nothing was said in TC25’s supplemental witness statement about this.

2)   The amendment therefore falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) this is further particularisation of the claim based on the medical evidence and XX of a jointly instructed medical witness. The ankle gunshot injury was pleaded, as D accepts. The information was available to the parties, as D accepts via the Part 35 questions. D XX on the gunshot wound [33-8121 – 33-8132]. It was reasonable and proportionate to amend once the expert had been cross examined.

2) as above, the gunshot injury was pleaded; response to Ds’ introduction at para 6.

Amendment refused.  The Claimant can rely on the details in paragraph 18 of his witness statement.  Other than that:

(i)   TC25 gave no evidence of such an impairment/duration of impairment to the Court.

(ii)  If the Claimant wished to rely upon this then the amendment should have been notified prior to TC25 giving evidence.  The Defendant is prejudiced that it is now not able to cross-examine TC25 as he died in August 2016. 

3)   Irrespective of that, the Defendant is prejudiced by not being able to cross-examine TC25 on this new allegation, as he died in August 2016.

3) D’s prejudice is limited, having had the opportunity to ask Part 35 questions and XX the jointly instructed medical witness who has taken a medical history.

25 – Munyi Njoki

63

“causing pain, swelling and restriction of movement for a period of around one year” 

1)             This asserts a previously un-pleaded injury in the form of impairment, swelling and pain arising from the incident in which TC25 alleged that he was hit on the hand.  TC25 gave no evidence of such an impairment / duration of impairment to the Court, despite this being entirely within his own knowledge (see §52 of his Witness Statement at 21-174, which refers to scarring only).  No amendment to the IPOC was sought prior to TC25 giving evidence and nothing was said in TC25’s supplemental witness statement about this.

2)             The amendment therefore falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) as above. This is further particularisation of an existing injury already pleaded, based on the medical evidence.

2) as above.

Amendment refused for the same reasons as preceding amendment.  It is not merely “further particularisation of an existing injury already pleaded”.

The Claimant can rely on the details in paragraph 52 of his witness statement.

3) Irrespective of that, the  Defendant is prejudiced by not being able to cross-examine TC25 on this new allegation, as he died in August 2016.

3) as above.

4) The averment as to the time over which pain, swelling and restriction of movement persisted (“a period of around one year”) is in any event not supported by the evidence relied on in the footnote to this amendment.  Mr Heyworth at page 7 of his report (21-200) gave no such timescale in relation to the alleged injury to the left hand.

5) The averment as to the area of pain, swelling and restriction of movement is not supported by the evidence relied on.  The amendment refers to “the fingers of his left hand” (plural) whereas Mr Heyworth’s report refers only to the middle finger (see at 21-199: “The injured finger was subsequently painful…”)

4) Correct. The words “a period of around one year” are not pursued.

5) This is irrelevant to this application. The pleading as originally pleaded refers to “fingers” rather than “finger” and is not the subject of amendment.

25 – Munyi Njoki

60 (new 63)

The deceased Claimant  has suffered symptoms as set out in the medical evidence but which do not satisfy the criteria for a recognised psychological injury.  He has current subclinical symptoms of post traumatic stress disorder and intermittent depression³. The deceased Claimant  suffers flashbacks and ruminates about his experiences and in particular the interference with his family life and the severe treatment and punishment/assaults he suffered. The legal effect of this is a matter for submission.

This amendment amounts to a pleading that TC25 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC25’s symptoms is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear.

The TC pleaded a psychological injury; the fact that symptoms do not, on examination by a jointly instructed medical expert, amount to a recognised psychological or psychiatric injury does not make them irrelevant nor unable to give rise to an award of compensation; the description of his symptoms was set out in the medical evidence [ 21-225 – 21-226];  D XX at 33-8971 – 33-8983] on the relevance of his activities as Mau Mau to his mental state, the nature of the diagnosis and his symptoms.

The amendment is not outside the scope of the pleading: it is an accurate description based on evidence and can sound in damages. 

Amendment permitted in part.  This is a “hybrid” between TC5/TC16 and TC9. 

Following the same principles and those set out in paragraphs 7-13 of the main judgment, the Amended pleading permitted is “The deceased Claimant has  suffered symptoms which do not satisfy the criteria for a recognised psychological injury.  The deceased Claimant suffers  suffered flashbacks and ruminates ruminated about his experiences and in particular the interference with his family life and the severe treatment and punishment/assaults he suffered. The legal effect of this is a matter for submission.”

He has current subclinical symptoms of post traumatic stress disorder and intermittent depression³

Insofar as the amendment refers to subclinical symptoms of PTSD and/or depression, it may (depending on how the amendment is properly to be understood, see above) seek to introduce a new injury and fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

As above and per response to D’s Introduction para 6.

He has current subclinical symptoms of post traumatic stress disorder and intermittent depression³.

The amendment refers to TC25 as suffering from current / ongoing symptoms.  TC25 died in August 2016.

This should be in the past tense  and refer to the time of Dr Davidsson’s examination [in 2015]. Also, “The deceased Claimant suffers flashbacks” should be in the past tense. If the amendment overall is permitted.

Refused.

Test Claimant

Paragraph

Amended

Amendment

Agreed?

Claimant’s

Response

Judge

26 – Njuguna Munjaro

67

Particulars of injury – see above

No.

26 – Njuguna Munjaro

67

The Claimant has also suffered symptoms as set out in the medical evidence but which do not satisfy the criteria for a recognised¹ psychological injury and but he suffers from symptoms and signs of mental distress, namely nightmares about his detention² and what he believes to be flashbacks. He remembers everything that he

went through and is bitter about his experiences. The legal effect of this is a matter for submission.

This amendment amounts to a pleading that TC26 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC26’s symptoms is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear.

The TC pleaded a psychological injury; the fact that symptoms do not, on examination by a jointly instructed medical expert, amount to a recognised psychological or psychiatric injury [per XX Mr Davidsson at 33-8890 and 33-8993] does not make them irrelevant nor unable to give rise to an award of compensation; the description of his symptoms was set out in the medical evidence [22-193] and XX by C [33-8994 - 8895];

The amendment is not outside the scope of the pleading: it is an accurate description based on evidence and can sound in damages

Amendment permitted in part.

(i)           See paragraphs 7-13 of the main judgment.

(ii)        “Psychological injury” was pleaded.

(iii)      “Flashbacks” are already pleaded.  Whether there can be recovery for what TC26 believes to be flashbacks is a matter for submission.  See TC14.

(iv)      TC26 gave no evidence of nightmares nor were they pleaded.  Therefore this aspect is disallowed.

(v)         Taking into account the Claimants’ point 3, the allowed amendment is “The Claimant has also suffered symptoms which do not satisfy the criteria for a recognised psychological injury but he suffers from symptoms and signs of mental distress, namely what he believes to be flashbacks.” 

but he suffers from symptoms and signs of mental distress, namely nightmares about his detention² and what he believes to be flashbacks.

He remembers everything that he

went through and is bitter about his experiences.

1)   The amendment refers to TC26 suffering from ‘nightmares’.  TC26 gave no evidence about suffering from nightmares.  TC26’s pleaded case and evidence were that he suffered from ‘flashbacks’.  He told Dr Davidsson that he suffered from nightmares and did not mention flashbacks (see Pt 35 Response to Q12 at 22-203 to 204).  No application to amend was made prior to TC26 giving evidence and this issue was not referred to in his supplemental witness statement.  The amended pleading rather than adopting one of these differing accounts seeks to advance them both, without explanation.

2)   The amendment therefore falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) As above.

2) As above.

3)   The amendment refers to TC26 continuing to suffer from nightmares (“he suffers from… nightmares”), and is not supported by Dr Davidsson’s evidence which was that nightmares were not reported by TC26 as continuing at the time of interview in 2015 (see 33-8991, lines 23-25) and had resolved over ‘a couple of years’, i.e. several decades ago (see 33-8997, lines 4-5).

3) Should the amendment be permitted, C is content to put “suffers” in the past tense and add “resolving over time” as an accurate reflection of the evidence.

4)   The relevance of the allegation as to TC26’s belief of flashbacks for an aspect of his psychological experience is unclear.  TC26 is not medically qualified, a non-English speaker and his own perceptions of flashbacks are clinically irrelevant accordingly.

4) not irrelevant and can sound in damages. This issue is a matter of law and submission.

Test Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

29 – Anonymised

44

Particulars of Injury

Not agreed.  See further below.

44

The Claimant’s back (including her low back/buttocks area³)

Agreed only as to “her low back”.

Not agreed as to “/ buttocks area³”.

1)    The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)    The amendment pleads a novel physical injury to a location lower than the back of TC29.  This injury had not previously been pleaded by TC29.  TC29 has at no prior stage alleged that she suffered from any compensable physical injury in respect of injuries to her ‘buttock area’.

3)    The delay in amending the pleading to include this physical injury is egregious. 

This objection is not understood. The buttocks cover the sacral area of the back. The TC identified the back and buttocks in her WS §30 [24-126]. D XX on causation and extent of injury [33-9425 – 33-9426]. The effect of the evidence overall is a matter for submission.

1) as above; this is within the injury already pleaded;

2) not a novel physical injury;

3) the amendment was sought at an appropriate and proportionate time;

Amendment permitted.

(i)            There is no objection to the pleading of injury to the “low back”.

(ii)     The buttocks and low back are extremely proximate.

(iii)    The Claimant referred to bruising to her buttocks in her witness statement (paragraph 30).

(iv)     Any increase in damages based on injury to the buttocks as distinct from the lower back will be minor and therefore any possible prejudice would be extremely small.

Accordingly:

4)      The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. 

4) as above and per response to D’s Introduction at para 6.

44

She has been psychologically traumatised, as pleaded at paragraph 32 herein, in particular, she suffered an episode of post-traumatic stress disorder for a period of around 2 to 5 years.

Not agreed.

1)    The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)     The amendment pleads a specific named psychiatric injury that had not previously been pleaded by TC29.  TC29 has at no prior stage alleged that she suffered from any compensable psychiatric/psychological injury, the reference in §32 to TC29 being “psychologically traumatised” falling short of the same. Indeed, TC29 had failed to identify symptoms satisfying the DSM or ICD criteria for PTSD.

3)     A fortiori and in any event, the original pleading did not contain even a general pleading of ‘psychological injury’. 

4)     The delay in amending the pleading to include this specific named psychiatric injury is egregious. 

Accordingly:

5)     The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment.

1) The pleading refers to emotional injury in the form of emotional suffering.

2) and 3) It is acknowledged that on this occasion the words “psychological injury” in general terms are not pleaded;  PD 16 4.2 requires a brief description of personal injuries; the symptoms pleaded describe emotional suffering. The TC has pleaded the basis of what has been now identified as a formal diagnosis by Prof Fahy [24-176 – 24-177; neither TC nor her representatives are psychologically or psychiatrically qualified; the need for medical evidence attached to the IPOCs was dispensed with and the parties jointly instructed medical experts.

D said that on the basis of an acceptance that the gang rape happened, they did not question the diagnosis; Further, that if the court finds it happened, it would properly be described as a self-limiting psych illness [33-9859]; in those circs, it is unfair for C not to be permitted to plead it (subject to issue of it being late, dealt with below) there is no prejudice. 

4) no delay; dealt with in response to D’s Introduction, para 11. The amendment application was made at an appropriate and proportionate time.

5) as above. 

In any event, no prejudice to D, as opposed to the prejudice to C who absent the amendment will not recover for her full loss.

Amendment refused.

(i)            The Claimant referred in her Particulars of Injury to having “suffered emotionally…”

(ii)     Further, in paragraph 32 of IPOC she pleaded “she has been psychologically traumatised by the event.”

(iii)             See paragraphs 9-13 of the main judgment and TC22.

[(iv) The fact that the Defendant, in cross-examination of Professor Fahy (33-9859), did at one point say “I do not wish, on the basis of an acceptance that the gang rape happened, to question your diagnosis” is insufficient to distinguish this case from similar cases.  It could not properly, in the context of all the markers the Defendant had put down in the case as a whole and in the context of this cross-examination of Professor Fahy, be read as departing from the position that matters not pleaded (and not in the witness statement) would not be accepted.  

Test Claimant

Paragraph

Amended

Amendment

Agreed?

Claimants’

Response

Judge

33 – David Thurugu Guchu

42

Particulars of Injury

No

33 – David Thurugu Guchu

42

The Claimant has not suffered a recognised psychological injury; but³ he still experiences what he describes as flashbacks of his ordeal and ruminates on the abuse he suffered. The legal effect of this is a matter for submission.

1)   This amendment amounts to a pleading that TC33 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC33’s symptoms is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear.

2)   The relevance of the allegation as to TC33’s description of flashbacks for an aspect of his psychological experience is unclear.  TC33 is not medically qualified, a non-English speaker and his own description of flashbacks is clinically irrelevant accordingly.

1) It is appropriate to make a relevant concession. That symptoms do not amount to a recognised psychological or psychiatric injury does not make them irrelevant nor unable to give rise to an award of compensation; it sounds in damages.

2) This is a permissible amendment in line with what was agreed in respect of TC 31. There is no reason for D to take a different approach.

D addressed the extent of symptoms currently and the extent to which it amounted to psychiatric illness in the past [33-9912]. No prejudice to D.

Amendment permitted.  See paragraphs 7-8 of the main judgment.  Also see TC9 and TC14 above.  (The Defendant reserves its position as to whether the pleading of ‘flashbacks’ is sufficiently evidenced by the Claimant.)

Test Claimant

Paragraph

Amended

Amendment

Agreed?

Claimants’

Response

Judge

34 – Anonymised

49

Particulars of injury – see above

No

34 – Anonymised

49

he suffered pain from scorpion bites (as set out at paragraph 20 herein) and

1)   This is not an allegation of injury sustained as a consequence of an assault.

2)   In any event, the amendment seeks to introduce a new injury into the Particulars of Injury, and so falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) Agreed.

2) Not a new injury in the claim, as is made clear – the fact that he was bitten is set out §20 of the IPOC and it comes within being kept in poor conditions is part of his injury [under “during detention” -28-14]. On reflection, if the amendment is permitted, reference to scorpions is more appropriately made under this section.

Amendment permitted save that “paragraph 20” should be “paragraph 19”.

(i)     As the Claimants concede this amendment should be later in the Particulars of Injury after “he was incarcerated in successive camps in poor conditions”. 

(ii)   In paragraph 19, dealing with conditions in Camp 30 (Compound 30) it is specifically alleged that the camp was infested with scorpions and that the Claimant was stung by them enduring pain for some 24 hours.

(iii)There is no prejudice as a result of this amendment.

was whipped during forced labour (as set out at paragraph 37 herein).

It is not clear what (if any) injury is alleged to have occurred as a result of this allegation.  To the extent that any injury is alleged, the amendment seeks to introduce a new injury into the Particulars of Injury, and so falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

As above; not a new injury; it has always been part of his claim. It is pleaded at §37 of the original IPOC; §49 (partics injury) states he was “assaulted on multiple occasions”. This is clarification, so it is within the scope of the judgment and is a permissible amendment as per TC 31.

Re undertaking: see response to D’s Introduction at para 6.

Amendment permitted.  The Court accepts the Claimants’ response.

34 – Anonymised

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He experienced permanent blurring of vision, particularly in his right eye.

1)   The insertion of ‘particularly’ appears to widen the site of the alleged injury from one to the right eye only to an injury affecting both eyes.  The only pleaded allegation of assault resulting in an injury to one of the Claimant’s eyes is that at paragraph 12, which relates to the right eye only, as does the existing pleading in the Particulars of Injury

2)   Insofar as this is an allegation of injury to the left eye, the amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.  See further below in relation to the un-pleaded allegation of a further injury to both eyes, made to Mr Heyworth.

1) It is pleaded that the TC suffered assaults on multiple occasions, he was hit with various implements in various parts of his anatomy, including blurring of vision. The amendment clarifies the injury to his vision in accordance with the medical evidence [33-8136 – 33-8140]: it was not permanent (a concession) but there was blurring to both eyes. This is clarification of the injury to the eye on the basis of the medical evidence and D was able to and did XX on it to establish the extent of the injury: [33-8143 – 33-8144].

2) Injury to eyes arises out of multiple assaults, including being slapped to the face;  it is a permissible clarification in line with TC 31.

Amendment refused.

(i)     In the Particulars of Injury the only allegation of any visual deficit is in respect of the right eye. 

(ii)  In the body of the IPOC the only reference to visual injury is in paragraph 12 at Ngong Forest where it states “The impact caused him to start to lose the sight in his right eye.” 

(iii)      Based on the medical evidence it is now alleged:

(a)   that as a result of the incident at paragraph 12 the Claimant suffered visual deficit in both eyes;

(b)       that he further suffered visual deficit in both eyes as a result of being assaulted at McKinnon Road and referring to paragraph 25 IPOC.

(iv)        This is clearly beyond what was permitted in the April 2017 judgment.

(v) The fact that the Defendant cross-examined in relation to both incidents based on the medical evidence does not permit the amendment.  Any cross-examination was without prejudice to the pleading point which the Defendant took generally.

(vi)At paragraph 19 of this Claimant’s witness statement, referring to the Ngong Forest incident, he said: “I was slapped on my face and hit violently on my eye.  This was so severe I started to suffer from eye problems from that time.  I suffered an injury that led to me losing my good sight on right eye.  My vision is blurred.”  (My underlining).  Although this may be regarded as ambiguous, it is not a clear allegation of blurring of vision in both eyes.

(vii)    As regards the MacKinnon Road incident, paragraph 38 of the witness statement makes no reference to any eye injury.  This Test Claimant was not asked about eye injury when he gave evidence.  Therefore there is no evidence from him to support the amendment.   

34 – Anonymised

49

Symptoms from beatings to various parts of his body as alleged probably resulted in pain for approximately three to four months

1)   The amendment is not limited or otherwise obviously referable to any particular pleaded incident of assault.  The footnoted reference is to evidence given by Mr Heyworth in respect of the specific assault at Mackinnon Road pleaded at paragraph 25 of the IPOC. 

2)    D will agree to this amendment if the words “at paragraph 25 above” are inserted after the word “alleged”.

1) PD 16 4.1(2) requires brief details of the personal injuries to be pleaded. He was assaulted on multiple occasions on various parts of his anatomy. D addresses the evidence on the basis of multiple assaults: 33-8144 “So you are again describing time-limited consequences of the assaults?”.

2) As above; the TC alleges multiple beatings as set out; they all resulted in soft tissue injuries for 3 – 4 months.

The amendment is allowed on the basis that it states “Symptoms from beatings from the various parts of his body as alleged resulted in pain for up to 3 to 4 months.”

There is merit in the Defendant’s responses.  However there are more beatings alleged than those at MacKinnon Road in paragraph 25 IPOC.  The period of 3-4 months puts the upper limit on the soft tissue injury symptoms. 

34 – Anonymised

49

Impairment of vision from assault lasted about 2 months or up to a few months

1)   This allegation is not only unclear as to what “a few months” is said to mean (or why it is averred in the alternative to “about 2 months”), but is contrary to the evidence relied on as given by Mr Heyworth, which is that impairment of vision lasted “about two months” (33-8147, lines 11-13).  Mr Heyworth did not give contrary or additional evidence.

1) At 33-8136 Mr Heyworth describes 2 months’ visual impairment associated with a blow; at 33-8143, line 10 – 13, in answer to D’s question, he agrees that, “similar to the earlier eye problems, that they were self-limiting and had resolved within a number of months?” – D elicits the range of 2 – months to a number of months for assaults involving the eyes.

Amendment allowed to read “Impairment of vision from assault lasted about 2 months”.

The evidence in respect of the eye injury sustained at Ngong Forest is from Mr Heyworth who said (33-8136) “So I think the duration of symptoms resulting from the slap was probably reasonable to consider that that was that two month period there.”  Later, in respect of the (disallowed) incident at MacKinnon Road Mr Heyworth said (33-8143) in response to a question from Mr Block QC that the eye problem was “self limiting and had resolved within a number of months”; later referring to both incidents Mr Heyworth agreed with Mr Block’s suggestion “on each occasion that was self limiting and there was a recovery within about two months.” (33-8147).

2)   Further, the amendment is insufficiently precise and might without further precision be taken to refer to an injury not already pleaded.  The pleaded assault resulting in loss of vision, specifically in the right eye, is that set out at paragraph 12 of the IPOC.  The Claimant however recounted a further occasion of assault to the head causing impairment of vision in both eyes to Mr Heyworth (see report at 28-213).  Whilst that incident appears to be that averred at paragraph 25 of the IPOC, the existing pleading in relation to that assault does not refer to an assault to the head taking place on that occasion (as recounted to Mr Heyworth), nor do paragraph 25 or the Particulars of Injury refer to any loss of vision in the left eye.

3)   If and to the extent that the Claimant seeks to rely on that alleged injury in respect of impairment of vision as well, by his reliance on the oral evidence of Mr Heyworth that is cited, such an amendment is for the reasons already given above outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury. 

4)   D would, as with the earlier amendment, not object were there a limitation to this averment referring back to the assault and consequent injury to the right eye alleged at paragraph 12.

2) Assaults on multiple occasions and being slapped in the face is pleaded. Mr Heyworth has confirmed the extent of injury for the times that the court finds that he was slapped on the face.

3) TC 34 reported to Mr Heyworth that he was violently slapped while at MacKinnon Road (ref IPOC §25) and that this included a slap affecting both eyes with blurred vision for several months when he was taken to hospital and given eye ointment [28-213]. As per IPOC at §25 - already pleaded that he was slapped; clarified in medical evidence that this was to the face.

D XX on the assault to the face at Ngong Forest (IPOC §12) at 33-8135; also XX on the assault at Mackinnon Road (IPOC §25) at 33-8142; Both incidents are pleaded.

4) The incidents relied on have been pleaded.

34 - Anonymised

49

“diagnosed as historic and current posttraumatic stress disorder;”

5)   The Particulars of Injury originally described TC34 as having suffered ‘psychological injury’ which was particularised as comprising flashbacks and ruminations on past events.

6)   The amendment now seeks to allege that TC34’s injury is PTSD. The original pleading was confined to an injury with symptoms of flashbacks and ruminations only, i.e. well short of the components of PTSD under the DSM or ICD criteria.

7)   The amendment accordingly seeks to introduce a new injury into the Particulars of Injury, and so falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

8)   The delay in amending the pleading to include this specific named psychiatric injury is egregious.

1) The Cs and D have the jointly instructed medical evidence identifying his illness. It comes within the injury already pleaded (psychological injury) and is clarification based on that medical evidence  [28-279; §126]. D cross examined at length on the flashbacks which formed part of the diagnosis; further at 33-8783 line 13, XX on causation, while accepting the diagnosis: “I’ve indicated to you that I’m not cross examining on that. I accept that on the basis of the history that you were given, if you take it at face value, you were fully entitled to reach the conclusion that there was historical PTSD. What I am examining with you ….. is that there could be other events that would wholly support a diagnosis of PTSD”.

4) with all the psychiatric injuries, it was appropriate to conclude XX of the jointly instructed medical experts before making an application to amend.

No prejudice to D.

Amendment refused.  See paragraphs 9-13  of the main judgment.

The alleged diagnosis requires more than flashbacks and ruminations.  It is not merely putting a medical label on those symptoms which are pleaded.  If this diagnosis was to be relied on, it should have been pleaded after the medical evidence was available in 2015 and not, after the Claimant and the doctors had given evidence, in late 2017. cf  TC16 and TC22 above.

34 – Anonymised

49

The flashbacks involve the incidents where… he was forced to carry dead bodies and their guts spilled out onto him

The use of plural forms for “bodies” and “their” is not supported by the evidence. Prof. Mezey’s evidence was that the flashbacks related to “the allegation of carrying a dead man and his intestines spilling over the claimant” (33-8792, lines 9-12)

He was forced to carry dead bodies (plural) but it is agreed that only one instance of the guts spilling out, giving rise to the flashback to that incident,  is described. Should the amendment be permitted, this will be made clear i.e. “where the guts of a dead man he was forced to carry spilled out onto him”.

Amendment as revised by the Claimants allowed.

Test Claimant

Para amended

Amendment

Agreed?

Claimants’ response

Judge

39 – Ann Watetu Nduhiu

11

The house in which the Claimant lived was not burnt down, but that of her sister was burnt.

This is an amendment that was overlooked previously.  The Revised Annex to Andrew Robertson’s 6^th statement made it clear that the Defendant disputed this amendment.  Unfortunately, the challenge to the amendment was omitted from the version of the schedule the Claimants supplied when setting out their position on the Defendant’s objections.  Hence it was neither discussed at the hearing on 19 July 2017 nor did it appear in the schedule to the Court’s judgment of 18 August 2017.  Whilst not an injury amendment, the parties have agreed that it be addressed by the Court at this stage in the proceedings.

Not agreed.

D maintains its objection to the addition of this allegation.  The amendment is irrelevant to the causes of action pleaded, as it pleads trespass and/or damage to the property of a third party.

Yes, it was overlooked. It is clarification in accordance with TC evidence [33 – 1583] and this is sufficient to permit the amendment.

In addition, what she witnessed goes to the generic issue of assaults and batteries during forced removal as pleaded generically at  para 8(b)(i) [1-8] and addressed during Opening (as revised)(paras 19, 121, 83, 121, 333, 348,  678, 681)

Amendment permitted.  To the extent that it clarifies that the Claimant’s house was not burned down, it restricts the pleadings.  To the extent that it refers to the sister’s house being burned, it merely reflects the evidence and is part of the background and may be relevant on generic matters, but not to any tort or injury sustained by TC39.  The Claimants accept that, consequentially, the words “she was forced to watch as her home was burnt down” should be deleted from IPOC paragraph 34(1).

38

Particulars of Injury

Not agreed. See further below.

Inter alia, the Claimant was beaten with a stick on her right, upper arm and her back².

Not agreed, save as to the reference to “her back”.

1)      The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)      The amendment pleads an injury to “her right, upper arm” that had not previously been pleaded.  At no prior stage had TC39 alleged that she suffered from any compensable physical injury in respect of her right upper arm.

3)      The delay in amending the pleading to include this specific named physical injury is egregious. 

Accordingly:

4)      The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. 

1) Being grabbed by the shoulder (§21) during an assault is pleaded; during the medical evidence she disclosed the beating of a stick to her upper arm [29-134]; this is an injury to her upper limb.

D did not XX on this injury.

On reflection, it is a not pursued.

Amendment refused as not pursued by the Claimants. 

The Claimant suffered post-traumatic stress disorder for a period of around two years³.

Not agreed.

1)        The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’.  D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)     The amendment pleads a specific named psychiatric injury that had not previously been pleaded by TC39.  TC39 has at no prior stage alleged that she suffered from any compensable psychiatric/psychological injury. TC39 had failed to identify symptoms satisfying the DSM or ICD criteria for PTSD.

3)     A fortiori and in any event, the original pleading did not contain even a general pleading of ‘psychological injury’. 

4)     The delay in amending the pleading to include this specific named psychiatric injury is egregious. 

Accordingly:

5)      The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment.

1) In her WS she describes the grief at losing Muthoni [29-112] under the heading “psychological injury”. However, normal grief would not be a compensable loss; it is only once the jointly instructed medical expert reports that a recognised psychological disorder is diagnosed.

2) and 3) TC 39 is unsophisticated; It takes an expert to elicit her injury and diagnose it; It is acknowledged that on this occasion the words “psychological injury” in general terms are not pleaded; neither the TC nor her representatives are psychologically or psychiatrically qualified; the need for medical evidence attached to the IPOCs was dispensed with and the parties jointly instructed medical experts.

The expert elicits symptoms of and identifies a recognised psychological disorder [29-189];

D was able to XX on the diagnosis, the criteria and the symptoms [33-10943 – 33-10947]

4) dealt with in response to D’s Introduction, para 11. The amendment application was made at an appropriate and proportionate time

5) The amendment is similar to TC 27 and TC 31; in any event, there is no prejudice to D.

Amendment refused.

(i)      There is no pleading at all of psychological injury. 

(ii)    Therefore this proposed amendment goes beyond that which should be permitted and which was permitted in the judgment of April 2017.

(iii)        The jointly instructed medical report was in 2015.  The Claimant was not  cross-examined until 2016.  Therefore an amendment to Particulars of Injury could have been pleaded prior to her giving evidence.

(iv)        The only evidence as to psychological injury given by the Claimant herself is in paragraph 35 of her witness statement and relates to her daughter’s death.  She said “The loss of my daughter was very painful and sad.  When I think about it my blood pressure rises.”  In the absence of a pleading of psychological injury, that statement could properly be treated by the Defendant as a grief reaction (despite the sub heading in the statement).

(v)  See paragraph 9 of the main judgment.

(vi)The medical evidence of psychological injury refers to the death of the child, houses burning and beatings.  This goes beyond that which the Test Claimant has supported in her own evidence.