Rahman v Arearose Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE SCHIEMANN,LORD JUSTICE HENRY |
| Judgment Date | 15 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0615-11 |
| Docket Number | QBENBF 1999/ 0410/1 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 June 2000 |
[2000] EWCA Civ J0615-11
Lord Justice Henry
Lord Justice Schiemann and
Lord Justice Laws
QBENBF 1999/ 0410/1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(MR JUSTICE ROUGIER)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ronald Walker QC and Susan Rodway (instructed by Messrs Vizards Staples & Bannisters for the First Defendant)
Bernard Livesey QC and Seanin Gilmore (instructed by Messrs Beachcroft Wansborough for the Second Defendant)
Lord Brennan QC, Robin Oppenheim and Paula Sparks (instructed by Messrs Christian Fisher for the Claimant)
INTRODUCTORY
This is an appeal, brought with permission granted by the trial judge, against part of a decision of Rougier J in his judgment in the action given on 18 February 1999. The claim was for damages for personal injuries, loss and damage said to have been occasioned by the negligence of the first and/or second defendants. The second defendants had admitted liability before the trial. The judge found the first defendants were also liable. He assessed the claimant's damages and made awards against both defendants to reflect his view of the appropriate extent of the responsibility of each of them for the claimant's injuries and losses. By the appeal the first defendants complain of the apportionment, or distribution, of damages effected by the judge as between themselves and their co-defendants. The claimant and second defendants have both lodged respondents' notices. The first defendants also sought permission to appeal against the judge's findings of causation in the context of his conclusion as to liability. That was refused by Rougier J, but granted by Stuart-Smith LJ on 28 May 1999. However the liability/causation issue has been compromised by the claimant and the first defendants on the footing that the latter should pay 60% of whatever sum would represent the damages to be laid at their door in light of our conclusions on the appeal. In addition, the claimant seeks permission to appeal against the judge's findings as to the general damages due for pain, suffering and loss of amenity, in light of the judgment of this Court (constituted by five judges presided over by the Master of the Rolls) in Heil v Rankin & anor (transcript, 23 March 2000).
THE FACTS
The claimant, who was born on 13 January 1969, was in October 1991 appointed manager at the King's Cross branch of Burger King, where the franchisees were the first defendants who were thus the claimant's employers. On 28 March 1995 two black youths came into the premises and began to cause trouble. They were members of a gang who had been there before. The claimant ordered them off the premises. But they burst through the staff door beside the serving counter, and subjected the claimant to a vicious and brutal assault. They punched and kicked him. One of them began to strike him with a fire bar taken from a boiling hot fryer, splashing boiling oil over the tops of his legs. He slipped to the floor. There, he was kicked and punched again. One of the youths had a large gold ring on one finger. That connected with the claimant's right eye. One or both of them stamped on his face. He lapsed into semi-consciousness.
In the immediate aftermath of the assault he was cared for overnight at University College Hospital. Then on 3 April 1995 an eye specialist to whom the claimant had been referred diagnosed a fracture of the orbital wall of the right eye, which was confirmed by a CT scan undertaken the same day. A decision was taken that surgical intervention was indicated, apparently to prevent the eye from sinking in its socket so as to present an unsightly appearance. The claimant consented to an operation being performed, and a bone graft was carried out, again on the same day. Some hours after the operation his right pupil was observed not to be reacting to light. On 4 April a CT scan showed that the bone graft was impinging on the optic nerve. A further operation was carried out that day, but the vision in the right eye has been permanently lost.
The claim against the first defendants was to the effect that as the claimant's employers they owed a duty to take measures to protect their staff which they breached. There was evidence of previous assaults in the restaurant upon the claimant and other members of the staff. The first defendants denied any breach of duty and asserted that in any event there were no measures which they could reasonably have been expected to undertake which would have prevented the attack. However, as I have said, the judge found for the claimant on the issue of liability. The second defendants are the NHS Trust which is vicariously responsible for the admitted negligence of the surgeon who operated on the claimant.
Although it goes without saying that the physical injuries suffered by the claimant, both in the assault and in consequence of the bungled surgery, were grave indeed, it is the psychiatric aspect of his condition that has given rise to the issue falling for determination on the first defendants' appeal. In the course of argument this has sometimes been referred to as the "contribution" issue, and indeed Rougier J so described it when granting permission to appeal. However there were no contribution proceedings as such at first instance, and in light of the arguments developed before us, which I will of course explain, the term "contribution" may be thought to be question-begging. The issue is best described thus: what is the correct approach in principle to the assessment of the damages which each defendant should be required to pay so as to reflect the extent of their respective liability to compensate the claimant for his psychiatric injuries and their consequences?
The judge's description of the claimant's psychiatric problems reads in part as follows (transcript, 10F ff):
"Besides the identifiable physical effects of these two separate injuries, the plaintiff suffers from an intractable psychiatric disability of very great severity. Not to put too fine a point on it, his life is in ruins. The psychiatrists from all three sides who have examined this man are agreed that he has a post-traumatic stress disorder of great severity manifesting itself in intense and wholly irrational dread of Afro-Caribbean people. Additionally, he has a severe depressive disorder of psychotic intensity with all the classic symptoms of apathy, misery and feelings of hopelessness, amounting at times to the suicidal…
[H]e now spends all his time sitting at home in a state alternating between listlessness and terror. He cannot be left alone. Finally, he has an enduring personality change. His flash point is now very low and he has quarrelled, even to the point of violence, with his brothers and sisters. Relations between himself and his father are virtually nil, so that he has left the family home and lives in a two-room flat…
He is at present unemployable and has not worked since the first incident. [The judge then refers to the claimant's marriage, which took place in 1997.] [H]is wife,… an intelligent and devoted young woman,… abandoned her own training as a lawyer and now devotes herself almost entirely to looking after her husband…
The effects of the two separate incidents, which have led to the condition I have outlined, are entwined around each other like ivy strands round a tree. The court is faced with the daunting task of trying to disentangle various causes and effects and to determine at which door they are to be laid."
As the judge indicated, each of the three parties instructed a psychiatrist: Dr Lipsedge for the claimant, Dr Baggaley for the first defendants and Dr Bradley for the second defendants. They all produced reports, but at length were asked by the lawyers to meet and explore what degree of agreement they might reach. Their conclusions were reduced to writing. This document is to my mind of the first importance, and I propose to set it out in full, as did the judge below.
"Summary of Discussions Between Doctor Lipsedge, Doctor Bradley and Dr Baggaley
The experts were asked to consider three issues:
The diagnosis,
prognosis and
Mr Rahman's condition if the eye injury had not occurred.
Diagnosis
All experts agree that Mr Rahman has:
Post traumatic stress disorder (PTSD).
A severe depressive disorder of psychotic intensity.
A specific phobia of black people with paranoid elaboration.
Enduring personality change.
Aetiology
The aetiology of the individual disorders is considered to be:
PTSD. This is thought to be largely due to the assault but some symptoms are related to the operation.
A severe depressive disorder of psychotic intensity. This is thought to be largely a psychological reaction to the loss of the eye.
A specific phobia of black people with paranoid elaboration. This is thought to be due to the assault, and subsequent threats, court attendances and identification parades. It has also been reinforced by subsequent events such as the attack on his brother by a black man.
Enduring personality change. This is thought to be due to the synergistic effect of the depression and the PTSD and probably would not have developed [the word "occurred" follows but is struck through] if Mr Rahman had not lost his vision in one eye.
Prognosis.
All experts agreed that the prognosis is poor in spite of the fact that his personality before the assault appears to have been stable.
It is unlikely that Mr Rahman will resume work in the foreseeable future, and it is the view of two of the...
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