McHugh v Deidre Delores Gray (as Personal Representative in the Estate of Dr Charles Gray)
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE BEATSON,Mr Justice Beatson |
| Judgment Date | 27 July 2006 |
| Neutral Citation | [2006] EWHC 1968 (QB) |
| Court | Queen's Bench Division |
| Date | 27 July 2006 |
| Docket Number | Case No: MA202584 |
[2006] EWHC 1968 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Crown Court,
Crown Square, Manchester, M3 3FL
The Honourable Mr Justice Beatson
Case No: MA202584
(as Personal Representative in the Estate of Dr Charles Gray)
Mr G Mansfield QC (instructed by Linder Myers) for the Claimant
Mr R Seabrook QC (instructed by Medical Protection Society) for the Defendant
Hearing dates: 19/7/06
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 23 February 2006, following a trial of the issue of limitation as a preliminary issue, HH Judge Armitage QC decided that the claimant's claim for damages for personal injuries against the second defendant is barred by section 11 of the Limitation Act 1980. He held that by 30 June 1992 at the latest the claimant had constructive knowledge of the facts required by section 14 of the 1980 Act, so that the primary limitation period expired on 30 June 1995. He also held that, having regard to the provisions of section 33 of the 1980 Act, it would not be equitable to direct that section 11 shall not apply to this claim. The personal injuries claim against the second defendant was pleaded in February 2002 but deleted in December 2002. In October 2004 the claimant applied to re-amend the particulars of claim to reinstate the personal injuries claim. This application was also before the learned judge but fell away in the light of his decisions on sections 11 and 33 of the 1980 Act.
By a notice filed on 9 March 2006 the claimant sought permission to appeal both against the judge's decision as to the date of the claimant's knowledge and his refusal to exercise the court's discretion to disapply the primary limitation period pursuant to section 33. Swift J ordered the application for permission to be listed for an oral hearing to be followed by the hearing of the appeal if permission is granted. In the event, the claimant did not pursue his appeal against the judge's decision as to the date of the claimant's constructive knowledge so that I am only concerned with his exercise of discretion under section 33. For reasons that will become apparent I have concluded that permission to appeal should be granted. The remainder of this judgment deals with the substance of its appeal.
The background
The summary of events which follows is derived from the claimant's chronology, which was not contested, and Judge Armitage Q.C.'s judgment: see in particular paragraphs 34–36, 40–41, 43, 47–48, and 54–55.
The claimant was present at Hillsborough Stadium on 15 April 1989 when spectators died or suffered serious injury as a result of crushing in the crowd attending a football match. In November 1989 he consulted the first defendant about a claim for compensation against the South Yorkshire Police in respect of injuries he suffered as a result of his experience at Hillsborough. The first defendant instructed the late Dr Charles Gray, a consultant psychiatrist, to examine the claimant and report on his condition and prognosis in relation to any psychiatric injuries suffered by him. Dr Gray reported on 24 November 1989 that the claimant had a moderate degree of post-traumatic stress disorder as a result of his involvement in the Hillsborough disaster. Dr Gray stated these should resolve without any specific treatment over a matter of months and the claimant should suffer no permanent psychological consequences as a result of the disaster. Dr Gray's opinion was material to the issues of causation and quantification of damages and was relied on by the claimant and the first defendant. In the light of it, on 20 January 1990, the claimant's case against the South Yorkshire Police was settled for £2,750.
The claimant's condition did not resolve. On the facts presumed for the purpose of the preliminary issue there was a clear deterioration in his condition between January 1990 and the end of 1992. He became withdrawn, was drinking more, and broke up with his girlfriend with whom he had been in a relationship for some 8 years. In March 1992 when registering with a new GP he misrepresented his true alcohol use but told the doctor about losing his girlfriend and about the change in him since Hillsborough. The judge stated (paragraph 41) that some two years after he had settled his claim on the basis that he would recover gradually over a short period of time he was telling his GP that he had not recovered from Hillsborough. The judge considered that he was seeking medical advice for a persisting condition. It appears (see paragraph 42 of the judgment) that the claimant consulted another GP in October 1992. Although he said that he had not mentioned Hillsborough, the GP noted that he had referred to drinking every night, to being depressed about the recent break up with his girlfriend, and to feeling that for three years he had put up barriers against people who said that he was depressed.
Thereafter the claimant resorted to drugs, first cannabis and, from about 1995, cocaine. He decided to stop his heavy use of cocaine in May 1998 but on 30 August that year he was arrested for possession of a class A controlled drug with intent to supply and, following a trial, on 16 April 1999 was sentenced to 3 years imprisonment. It appears that he sought advice about Hillsborough from the solicitors who acted on his behalf in the criminal proceedings. They gave him the name of his present solicitors who had held a forum for Hillsborough victims and had apparent success on behalf of one Hillsborough claimant. The claimant wrote to them on 2 March 2000. As a result of the advice he received, and in the light of a report by Dr Higson, a clinical psychologist, he instituted proceedings against the first and second defendants.
There were two elements to the claim as originally pleaded in February 2002. The first was an economic loss claim founded on the premise that the original claim was compromised at a substantial undervalue. The second was a personal injury claim founded on the alleged negligence of Dr Gray in relation to his diagnosis as to the severity of post traumatic stress disorder and his prognosis of the claimant's psychiatric condition. The allegation is that Dr Gray failed to establish the true severity of the claimant's condition and that his prognosis was falsely optimistic which led to the claimant receiving no treatment and to his psychological condition becoming entrenched. On 20 December 2002, following a change of counsel, the particulars of claim were amended by the deletion of any claim for damages for personal injury. In July 2004, following a further change of counsel, the claimant sought to re-amend the particulars of claim so as to reinstate the claim for personal injury damages. The economic loss claims against both defendants were compromised after the pre-trial review on 21 October 2004 when the question of limitation was ordered to be determined as a preliminary issue together with the claimant's application to re-amend.
The evidence
The judge heard evidence from the claimant and considered the agreed evidence of his mother and former girlfriend, and the expert medical reports relied on by the claimant: see paragraphs 15–21 and 59–61 of the judgment. The expert medical evidence dealt with the issue of avoidance by those with post traumatic stress disorder of stimuli associated with their trauma and the impact of the claimant's post traumatic stress disorder on his capacity to come to conclusions and make decisions about that condition and act on them: see paragraphs 17 and 61 of the judgment.
The decision below
The judge rejected the claimant's evidence that he attributed his condition to his own weakness rather than to the effect of Hillsborough upon him: see paragraphs 48 and 55–57 of the judgment. Although the judge accepted that the claimant may have been afflicted by avoidance and survivor guilt, he stated (paragraph 60) that the claimant "had overcome them to an extent allowing him to make two claims for damages, one arising directly and the other indirectly out of the traumatic event". He was not persuaded that the claimant was consistently avoiding thoughts or discussions about Hillsborough and stated that the claimant remained aware that he was not getting better despite the expert opinion and prognosis by the second defendant which Dr Freeman, one of the medical experts, stated (see paragraph 61) would have seriously impeded his "help seeking behaviour". Notwithstanding the expert evidence concerning avoidance, the judge concluded (paragraph 50) that "the claimant remained conscious of the persisting connection between his circumstances and Hillsborough and that he was capable of revealing that connection if it suited him".
Since the claimant did not pursue an appeal against the judge's decision as to the date of his constructive knowledge of the facts required by section 14 of the 1980 Act, I can deal with that part of the judgment relatively briefly.
The judge stated:-
i) that by the time the claimant saw Dr Gray he knew that his condition was very different and that it was the result of his experience at Hillsborough (paragraph 63).
ii) By the time he acted on Dr Gray's report he knew that the condition which accounted for the difference was called post traumatic stress disorder (paragraph 63).
iii) The unexpected outcome was the failure of the claimant to recover in accordance with Dr Gray's prognosis. That was a fact observable and in his judgment observed by the claimant without the help of expert advice (paragraph 64).
iv) Once Dr Gray's prognosis proved to be inaccurate...
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