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Case No: CCRTF 1999/1306
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY OF LONDON COURT
(HIS HONOUR JUDGE SIMPSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17th November 2000
B e f o r e :
LORD JUSTICE HENRY
LORD JUSTICE POTTER
and
MR JUSTICE WALL
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COLIN
TREVOR LUDLOW
|
Appellant
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and -
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NATIONAL
POWER PLC
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Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Daniel Crowley Esq (instructed by Messrs Atwood & Co for the
Appellant)
Patrick Vincent Esq (instructed by Messrs Lawrence Graham for the
Respondent)
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
(As Approved by the Court)
© Crown Copyright
LORD JUSTICE HENRY:
1. This is the appeal by the claimant, Mr Ludlow against the quantum of the
judgment of His Honour Judge Simpson, who on 4th May 1999 awarded him damages
of £3,050 and interest of £336 for personal injuries sustained in the
course of his employment with the defendant respondent, National Power PLC,
liability having been admitted.
2. The accident happened on 2nd April 1990. Trial of the action was not until
April 1999, nine years later. The claimant was driving a pay-loader (a form of
motorised shovel) into a pile of coal dumped for collection on the power
station floor. There was a bolt protruding from the floor, hidden under the
coal. As the claimant drove the pay loader into the coal, it hit the bolt, the
back of the pay-loader went up into the air, the claimant was thrown forward
and suffered a flexion-extension injury (whiplash) to his neck and back, for
which he was awarded the above damages for his injuries. That award was
calculated on the factual basis found by the judge, namely that:
"...the balance of the medical evidence indicates that the accident ... was
responsible for pain and suffering for a short period, and should have cleared
up within, say one year. Tt follows that his later and current problems are
not the responsibility of the defendant."
These "... later and current problems ..." are psychiatric problems
(post-traumatic stress disorder - "PTSD") and/or depression of which the
claimant now complains, and which are the subject of this appeal.
3. By his Notice of Appeal, the claimant appellant asks this Court to set
aside the judgment, and either order a new trial or increase the damages to a
total of £343,438.40 on the basis that the claimant is suffering from PTSD
as a result of the accident, and will never work again. Essentially, the
complaint is that the judge gave no sufficient reasons for rejecting the
psychiatric element of Mr Ludlow's claim, and for finding as he did. There is
no ground of appeal relating to the judge's finding and award in relation to
the claim for physical injuries, but the Court is invited to set that judgment
aside, and either order a new trial or (ambitiously) itself quantify and award
damages in the above sum.
4. The facts in their barest outline were as follows. At the time of the
accident the claimant was 33. The Particulars of Claim were issued in the
Mayor's and City of London Court at the end of the limitation period
(29.03.93). No psychiatric damage was originally diagnosed or pleaded. The
diagnosis of PTSD and its attribution to this accident was first made by Dr
Alun Jones in May 1998, eight years after the accident, and the pleadings were
amended to include that claim in November 1998, 8½ years after the
accident.
5. The circumstances of that diagnosis were that in March 1998 the claimant's
wife read a newspaper article about Dr Alun Jones, a psychiatrist, who
predominantly works with traumatised ex-Servicemen. She thought she saw
similarities between the symptoms of those men as described in the article, and
her husband's condition. She wrote to Dr Alun Jones stating how her husband
had changed from an easy-going, fun loving husband and father to a bad-tempered
silent depressive:
"I fear for his mental health and he has said more than once that he would be
`better off dead' and I would be better off he had been killed and not
injured."
6. As a result of her letter, on referral from his general practitioner, Dr
Alun Jones saw Mr Ludlow for the first of five interviews on 30th May 1998.
His description of the accident, according to Dr Alun Jones's note, was that
the machine had
"... nearly flipped over ... I don't really remember too much ... I could have
been killed ... very frightening at the time."
He complained to Dr Alun Jones of nightmares and recurrent dreams of the
accident. His wife complained of the change in him. He next saw the appellant
on 24th July 1998, where again the appellant complained of dreams and
flashbacks, and said the accident was "frightening". Dr Alun Jones notes the
many medical reports on the claimant had concentrated "... about his physical
matters". He, the psychiatrist, rated the accident as "... frightening, and
potentially life threatening ...", concluded that the claimant "... shows
features of PTSD relating to it ..." and under DSM IV of the American
Diagnostic and Statistical Manual of Mental Disorders expressed his condition
as PTSD and dysthymia:
"He suffered a frightening works accident which he perceived as potentially
life threatening ... He suffers depression, anxiety, disturbed dreams and
intrusive memories. The quality of his life is much diminished, and he is
unemployable".
Consequent on that report, the claim was amended to claim PTSD and a total
loss of earnings capacity for the rest of his life.
7. The amendment reads (under Particulars of Injury):
"The Plaintiff suffers from quite a significant degree of psychological
disorder. Post traumatic stress disorder has adversely affected the quality of
his life."
Then three medical reports are referred to, one from Dr Alun Jones. The
second report referred to is from Mr D A Jamall, a consultant orthopaedic
surgeon, dated 9th December 1992. This makes no reference to any psychiatric
damage, but does record that, in context of pain, the doctor recorded
"... his sleep is disturbed, he has become more irritable according to his wife
and his family life has therefore been disturbed."
8. The third report is from Dr Gardner-Thorpe, a consultant neurologist dated
20th August 1998. It refers to sleeplessness, but only in reference to pain.
It states that depression troubles him. He concludes:
"The reactions to the symptoms, manifest by sleepiness and depression is in my
view entirely understandable in relation to the disability suffered by Mr
Ludlow."
So essentially the diagnosis of PTSD depends solely on the opinion of Dr Alun
Jones. It is challenged by the psychiatrist instructed by the defence, Dr
Cutting.
9. It is against that background that I examine the judgment. There is no
criticism made of the judgment delivered in relation to the physical injuries.
The complaint relates solely to the refusal by the judge to accept the
diagnosis of PTSD and his refusal to find that the condition of the claimant,
be it PTSD or depression, was caused by the accident.
10. The judge started with the accident. The claimant had portrayed this as a
terrifying episode which has dominated and ruined his life since, leaving him
wishing for death. Yet the severity of the accident and the severity of its
consequences were both latecomers, both in the action and in his case as put
forward to doctors or in witness statements after the accident. The judge did
not hold or suggest that the claimant was malingering; however he clearly
concluded that the account given by the claimant had improved with the telling,
and stated that he should
"... regard Mr Ludlow's evidence with a good deal of caution. His earlier
explanations should be preferred in deciding how severe the accident was."
That was a conclusion he was entitled to reach.
11. He then dealt with the fact that the claimant was vulnerable because he
had a bad neck before the accident (although he told the doctors differently),
and also had a degenerate spine, of long standing, not caused by the accident.
The judge concluded the unusual aspects of the spine were probably not caused
by the accident. He relied on the claimant's orthopaedic surgeon, Mr Jamall,
for this finding. Mr Jamall had concluded that the accident had aggravated a
pre-existing condition of the claimant's neck. He found an element of
functional overlay. Ultimately he could not conclude that the symptoms present
at trial were due to the accident. The judge was entitled to accept Mr
Jamall's evidence on this point.
12. Both Mr Jamall and Dr Gardner-Thorpe (who also gave evidence for the
claimant) could not be satisfied that either the neck or the lower back
symptoms were the result of the accident.
13. The doctors' task was made difficult by the fact that the claimant was a
bad historian. The judge cited (and clearly accepted) criticisms of the
claimant as historian made by Dr Gross, who said (in commenting on the fact
that it was not until 18 months after the accident that the claimant's
employers heard of it) that the fact that the claimant was a bad historian "...
makes the late assessment of Mr Ludlow rather more difficult." He too
supported the finding that the judge made. Dr Gross did not believe that
"... an incident of this type would have accelerated the degenerative disease
...."
He took the overall view that Mr Ludlow's problems were caused by his
pre-existing neck condition.
14. Mr Moore, the consultant orthopaedic surgeon called by the respondents,
concluded that the accident could only be held responsible for the problems in
the neck. He found that the decompression and fusion at the C6-7 level which
the claimant underwent - without significant benefit - was
"... for treatment of the underlying condition that pre-existed the accident
... which was clearly not a very violent one."
He concluded:
"I think therefore that he had a progressive condition which the accident may
have accelerated, perhaps by a year or so, but it is impossible to tell. I
think it inevitable that, with the sort of work he was doing, and with the
changes in his neck that progression would have taken place."
15. He pointed out that there were no truly objective physical signs in the
neck disorder other than the X-rays, and, commenting on that absence,
concluded:
"It think it highly probable that he has very unpleasant symptoms from the neck
from time to time, but these are augmented by a functional overlay."
16. Having set out all this evidence, the judge concluded:
"In my judgment, the balance of the medical evidence indicates that the
accident, which is the subject of these proceedings, was responsible for pain
and suffering for a short period and should have cleared up within, say, one
year. It follows that his later and current problems are not the
responsibility of the defendant."
He then switched, at the top of Page 10, to the issue of the most significant
of his current problems, namely the PTSD.
17. That then was the context in which the judge came to examine the claim
that the claimant was suffering from, and the defendant was responsible for,
PTSD. The context shows that there was a degree of judicial doubt both as to
the violence of the accident said to have caused this condition and the terror
it induced, and as to the reliability of the account given by the claimant. We
do not come to that part of the judgment dealing with the psychiatric element
in the claim in an evidential vacuum.
18. The appeal on the psychiatric element is based on an alleged failure by
the judge to give adequate reasons for his decision. The appellant relies on a
decision of this Court, Flannery & Flannery -v-Halifax Estate Agencies
Limited [2000] 1 All ER 373. There there was a fundamental factual issue
between two expert witnesses as to whether certain cracks did or did not
indicate that a building was affected by structural movement. There the judge,
having stated that he had had the advantage not only of hearing the witnesses
give evidence, but also of seeing the way they reacted to questioning, simply
said that
"... he preferred the Expert Evidence given for the Defendants to that which
was given for the Plaintiffs".
There the Court, having disavowed the utility of attempting to make absolute
rules as to the requirement for the judge to give reasons because issues are so
infinitely various, ordered a new trial for want of reasons because:
a) fairness requires that the parties should be left in no doubt as to why they
have won or lost;
b) the requirement to give reasons concentrates the judicial mind, requiring it
to explain the workings of the decision, why the decision was reached. When
such reasons are given, both the parties and any appellate court will know how
the judge reached his conclusion, and thus whether the decision was properly
appealable.
19. I accept the broad applicability of both of those criteria. However, in
ensuring that those criteria are met, it must always be borne in mind that the
parties to the case are familiar with both the facts and the issues on which
the case was fought, and the adequacy of the reasons given by the judge fall to
be considered in that light. In my view the content of the judgment leaves no
real doubt as to why the claimant failed on this issue.
20. The starting point for the examination of the psychiatric damage issue is
the judgment on the original issue in the trial, namely the physical injuries
caused by the accident, and the judge's findings in relation to them - see
especially paragraph 17 above.
21. In his judgment, the judge reminded himself of the lateness of the
psychiatric claim, help only being sought and the claim being made in 1998,
eight years after the accident. He made the point that Dr Gardner-Thorpe (see
paragraph 7 above) was not a psychiatrist.
22. He then came to the central issue of the conflicting evidence of the two
psychiatrists, Dr Alun Jones and Dr Cutting. First, he considered their
experience and preferred the wider experience of Dr Cutting:
"The bulk of Dr Jones practice is in treating ex-Servicemen, many of whom have
problems following horrific incidents which they have witnessed which are far
more serious than that encountered by Mr Ludlow. I thought that Dr Cutting had
a more wide-ranging experience
I think that Dr Cutting's experience is more relevant for present purposes".
23. The claimant mounts a fundamental attack on the judgment. First, he
alleges that there was no evidence on which the judge could prefer Dr Cutting's
experience. Second, he asserts that the judge gave no adequate reasons for
that preference which was "... contrary to the weight of evidence". Third, the
judge failed to "... engage with the issues ...". Fourth, had he engaged with
the issues, he would have preferred Dr Alun Jones's evidence and found that the
claimant suffered PTSD.
24. The judge expressed himself tersely in his judgment. But when his
language is examined, his reasons for preferring Dr Cutting's evidence are or
would be plain to the parties in the case, or those who had sat through the
trial.
25. The judge identified the issues on which he preferred Dr Cutting by
express adoption of a quoted passage from his initial report, and also in his
text, 10A to D. He concluded:
a) that the accident was not the sort of trigger that PTSD (according to Dr
Cutting) requires;
b) that there was no mention of psychological symptoms until 1998 (when
depression was diagnosed and anti-depressants prescribed);
c) that the claimant is depressed now, but there is no evidence that that
depression was caused by the accident or has been present since 1990, when it
has only been clinically significant since 1998, and the first (isolated and
short-term) anti-depressant treatment was in 1995 - though it is unclear why it
was then given;
d) the cause of his present depressive illness is not clear. It is likely to
be his current physical condition, but the accident is not responsible for that
(as the matters in b) and c) show).
26. When one adds those conclusions to what the judge says at page 10A to 10D,
it is clear that his preference for Dr Cutting's evidence included:
a) a feeling that the accident was not sufficiently violent or terrifying to
trigger PTSD, and that Dr Alun Jones, with his practice at the serious end of
the spectrum of patients, might too readily take this test as being satisfied,
in contrast to Dr Cutting, with his broader experience of ordinary accidents.
The question was explored in evidence with both men. Dr Jones's experience
with combat-traumatised Servicemen "... was at the far end of the spectrum ..."
and only a small proportion accident-related.
b) a difference of clinical opinion between Dr Cutting and Dr Alun Jones as to
the utility of the American DSM categorisation of PTSD. This diagnostic aid is
widely accepted, and Dr Cutting put himself in what he fairly described as the
"... visible minority ..." when he was critical of it. His criticisms were
that the set questions to be put to the patient (on which the diagnosis was
based) were too general and the evaluation process too formulaic to be
discriminating, particularly as the accuracy of the diagnosis necessarily
depended on the reliability and insight of the patient. Dr Cutting's complaint
was that the DSM method was too generalised, and too dependent on the patient's
reliability. It marginalised clinical judgment and common sense.
27. These two themes come out clearly from a study of the evidence of the two
men. The judge indicated his preference. He put both themes under the label
of "experience". Given the unique nature of Dr Jones's practice that is
understandable. In my judgment it is clear (and would be clear to a party to
the case) why the judge preferred the evidence of Dr Cutting, and came to the
conclusion he did.
28. I am also satisfied that he was entitled to reach those conclusions on the
evidence before him.
29. Accordingly, I would dismiss this appeal.
LORD JUSTICE POTTER:
30. I agree.
MR JUSTICE WALL:
31. I also agree.
Order:
1. The appeal is dismissed.
2. The Stay on the execution of judgment be lifted.
3. The appellant to pay the respondent's costs of the appeal until 26/10/99
to be subject to a detailed assessment if not agreed.
4. The appellant pay the respondent's costs of the appeal after 27/10/99;
the appellant's liability to pay these costs be determined pursuant to
Regulation 10 of the Community Legal Service (Costs) Regulations
2000.
5. There be legal aid taxation of the appellant's costs.
(Order does not form part of approved judgment.)
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