Bryant v London Fire & Civil Defence Authority

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE RUSSELL,LORD JUSTICE WAITE,SIR FRANCIS PURCHAS
Judgment Date28 July 1994
Judgment citation (vLex)[1994] EWCA Civ J0728-2
Date28 July 1994
Docket Number93/0025/C

[1994] EWCA Civ J0728-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)

(Mr. Justice Tuckey)

Before: Lord Justice Russell Lord Justice Waite Sir Francis Purchas

93/0025/C

Bryant
and
London Fire & Civil Defence Authority

MR. J SAMUELS QC & MISS K BOYD (Instructed by Legal Department, London Fire & Civil Defence Authority) appeared on behalf of the Appellant

MR. J BURKE QC & MR. R GLANCY (Instructed by Robin Thompson & Partners, Essex 1GS 6NH) appeared on behalf of the Respondent

1

Thursday 28 July 1994

LORD JUSTICE RUSSELL
2

This is an appeal from a judgment of Tuckey J. who, on 30th November 1992 in an action claiming damages for personal injuries, awarded the plaintiff a total (including interest) of £70,236.67. The issue before the Judge was one of quantum only. The award consisted of £10,000 by way of general damages for pain, suffering and loss of amenity, £22,873 agreed special damages, and £34,000 future loss of earnings. The balance was interest.

3

The essence of the defendants' appeal is that the injuries sustained by the plaintiff were of a minor orthopaedic nature from which he should have made a full recovery within about 6 months of the accident. The Judge found that although the orthopaedic injuries were indeed insignificant the plaintiff was entitled to be compensated for psychiatric symptoms which continued to exist at the date of trial and would continue for a time thereafter.

4

The factual background can be shortly stated. For a number of years the plaintiff was employed by the defendants as a leading fireman serving at their Homerton Fire Station in London, E.9. On 15th october 1989, when the plaintiff was some 33 years of age, a fire appliance was reversed by one of the plaintiff's colleagues into collision with him as he was making his way to see the Station Officer. The plaintiff was thrown to the ground. The fire engine continued to reverse but happily did not make any further contact with the plaintiff. He was taken to the Station Officer's room and then to the Homerton Hospital where he was examined. He was not admitted. No bones were broken. The plaintiff was advised to rest and sent home.

5

In the Statement of Claim served in April 1991 the physical injuries sustained were particularised as "soft tissue injuries to the lumbar and cervical spines, aching in both shoulders, pain in both wrists and right ankle, stiffening of the right knee and right leg muscles".

6

These injuries were dealt with in a Report by Mr A. H. Osborne a Consultant Orthopaedic Surgeon who gave evidence on behalf of the plaintiff. He took the view, supported by his colleague Mr Shiers who gave evidence for the defendants, that from an orthopaedic point of view the plaintiff should have made a sufficient recovery to have returned to work normally after 6 months from the date of the accident and he concluded his report, dated 27th April 1990 by observing that the plaintiff's continuing symptoms at that time were due to "anxiety state and continued shock" and that a psychiatrist's report should be obtained.

7

It is unnecessary in this judgment to rehearse in detail precisely what happened in the months following the accident. The events can be summarised as follows. The plaintiff was initially signed off work for a fortnight, but when he went back he felt so unwell that he visited his General Practitioner and was signed off for another 4 weeks until 28th November 1989. In January 1990 there was a course of physiotherapy for a period of 3 weeks and in February 1990 osteopathy was undertaken. In March 1990 there was a further period when the plaintiff was off work. His symptoms at this time were headaches, neck pain, back pain and a burning sensation in the right wrist. The plaintiff was also depressed. He was seen by Dr S.Bampoe in April 1990 at the Occupational Health Department of St Thomas's Hospital. He referred the plaintiff to a Consultant Psychiatrist at that hospital, Dr J.P.R. Young, who suggested and put into effect a short course of treatment on anti-depressants. The plaintiff made "only limited headway" and by August 1990 when he was reviewed by Dr Young the plaintiff had continual complaints of back ache and told the Psychiatrist that he thought it would be necessary to leave the Fire Brigade and look for alternative work on the basis that a further back injury would be more likely if he remained in the force.

8

The plaintiff's overall condition was reviewed by the defendants' advisors in the context of his fitness to remain in the Fire Brigade and eventually, in January 1991, the plaintiff was medically discharged from the Fire Service, his disablement ultimately being assessed at 60%, 35% due to his physical condition and 25% to what was described as his "neurasthenic condition".

9

In the legal proceedings both sides assembled their medical evidence. The automatic Directions provided for two medical witnesses on each side. The plaintiff obtained reports from Mr Osborne, to whom I have referred and from Dr Christopher Howard a Consultant Psychiatrist. They also had a report from another Consultant Psychiatrist Dr C.J. S. Walter. The defendants consulted and obtained reports from Dr Denis Leigh a Consultant Physician and Psychiatrist together with Dr Young, the Consultant Psychiatrist who treated the plaintiff in 1990.

10

Very shortly before the hearing date of the action the defendants indicated that they proposed to call, with the leave of the Judge, both Dr Leigh and Dr Young in addition to their Orthopaedic Surgeon, Mr Shiers. The Judge gave leave for this to be done. Counsel for the Plaintiff objected but did not seek an adjournment against the background of an indication by the judge that the report of Dr. Walter dated 19 April 1991 should be included in the medical expert evidence to be considered by the judge. Precisely what evidential status the report had is not clear, and the Judge made no reference to Dr Walter's report, in his judgment. That we find to be unfortunate for we do not know what role, if any, the report played in the judge's conclusions.

11

Overall, Tuckey J. was confronted with very extensive medical evidence of a psychiatric nature. I do not think he could have been assisted by the use of so many forms of psychiatric terminology employed by the various doctors. The transcripts disclose reference being made to the plaintiff's condition as "post traumatic stress disorder", "post traumatic neurosis", "clinical depression", "depressive illness", "functional overlay", "neurasthenic condition", "anxiety state", and "somatic symptoms". It should be observed, however, that upon one point the Psychiatrists did speak with one voice namely that this plaintiff was not and never had been a malingerer.

12

For the plaintiff Dr Howard gave evidence to the effect that he had examined Mr Bryant on 22nd November 1990. His report was a lengthy one and his time in the witness box prolonged. The thrust of his evidence was to the effect that before the accident the plaintiff showed no evidence of any psychiatric disturbance, but that the accident was "a sudden, unexpected, terrifying and life threatening incident in which he sustained various muscular injuries of a painful and incapacitating kind". Post accident the plaintiff was affected by psychological symptoms which Dr Howard considered constituted a post traumatic stress disorder. This diagnosis the learned Judge expressly rejected in his judgment. He said:-

"The accident was not the sort of event that one would expect to cause such a disorder. The literature refers to events outside the range of human experience. Here we have a fireman who must have been used to facing dangers almost every day of his working life. I do not doubt that he was shocked by the accident, but it is worth noting that he was not in such a bad way that he was detained in hospital or that he even needed to be taken home immediately. Moreover, although some of the features of post traumatic stress disorder were present and have been described, the most significant features of such a disorder were not. For those reasons I do not accept Dr Howard's evidence that is what the plaintiff is suffering from".

13

There is no challenge to that finding of the Judge.

14

Dr Leigh and Dr Young, called on behalf of the defendants, each rejected the diagnosis of post traumatic stress disorder. Dr Young's Medical Report dated 16th November 1992 and confirmed by his testimony first dealt with the plaintiff's referral to him in May 1990. He commented;

"When first seen, Mr Bryant gave a history of persistent symptoms of anxiety and depression following an accident at work in October 1989….My opinion was that he showed features of a mild reactive depression associated with ongoing somatic symptoms. At the time, I was unsure as to the cause of the depression though it seemed likely that this had arisen on the basis of his inability to return to full time work. Untreated I felt that his complaints were likely to continue and I therefore suggested that for a limited period he should take combined anti-depressants in low dosage…I also mentioned to Dr Bampoe that the patient had contacted his Union with a view to seeking compensation for the injuries which he received in the accident of October 1989. I felt that this issue might have a bearing on the patient's psychiatric difficulties and his likely responsiveness to treatment…..Whilst being seen during the above period, Mr Bryant told me that he thought that it would be in his interests to leave the Fire Brigade and look for alternative work on the basis that further...

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