Vernon v Bosley (No. 2)

JurisdictionEngland & Wales
JudgeLORD JUSTICE STUART-SMITH,LORD JUSTICE EVANS,LORD JUSTICE THORPE
Judgment Date13 December 1996
Judgment citation (vLex)[1996] EWCA Civ J1213-7
Docket NumberFC3 96/6020/C
CourtCourt of Appeal (Civil Division)
Date13 December 1996
Vernon
Respondent
and
Bosley
Appellant

[1996] EWCA Civ J1213-7

Before:

Lord Justice Stuart-Smith

Lord Justice Evans

Lord Justice Thorpe

FC3 96/6020/C

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(MR JUSTICE SEDLEY)

Royal Courts of Justice

Strand

London W2A 2LL

MR DERMOD O'BRIEN QC and MR DANIEL PEARCE HIGGINS (instructed by Messrs Howard Palser Grossman Hermer & Partners, Cardiff) appeared on behalf of the Appellant (Defendant).

MR DAVID BLUNT QC and MR JONATHAN MARKS QC (instructed by Messrs Osborne Clarke, Bristol) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE STUART-SMITH
1

Background

2

On 29 March 1996 draft judgments were handed down by this court on the defendant's appeal from a judgment of Sedley J. given on 30 January 1995 whereby he awarded the plaintiff £1,332,231.59 by way of damages and interest in respect of nervous shock or psychiatric injury sustained by him when he witnessed on 13 August 1982 unsuccessful attempts rescue his two daughters from a motor car which had been driven into a river in South Wales by the defendant, who was employed by the plaintiff and his wife as a nanny.

3

The defendant never disputed that she had been negligent or that the plaintiff was a person, who, if he suffered nervous shock or psychiatric illness, usually referred to as Post Traumatic Stress Disorder (PTSD) as a result of witnessing the accident or, in this case its immediate aftermath, was entitled to recover damages. But she disputed that the plaintiff had suffered PTSD, as opposed to a grief reaction albeit an extreme one. It was her case that any subsequent problems of depression and consequent disability were reactions to life's events, unconnected to the accident. The judge in essence upheld the plaintiff's claim that the witnessing of the aftermath of the accident was a substantial cause of the plaintiff's persistent and ongoing mental illness, though he rejected a claim for nearly £3 million for the loss of capital and profits in a company called Parearo Ltd., the failure of which company the plaintiff contended was due to reduced ability to conduct the affairs of the company properly. Sedley J. held that it would have failed in any event.

4

On appeal to this court the defendant submitted first that the judge was in error in holding that the plaintiff had proved that he had suffered PTSD, as opposed to a grief reaction, for which damages were not recoverable, or that his mental condition was attributable to his having witnessed the accident. On this issue the court was divided. I agreed with the defendant's submission and would have allowed the appeal in whole. Evans and Thorpe LJJ disagreed. The defendant also contested some of the heads of damage awarded by the judge, his award of interest and his decision on costs. By our draft judgment we reduced certain of his heads of damage, so that the total award of damages was reduced to £643,425,56 (though this was subject to an arithmetical error to which I shall refer hereafter), together with interest, calculated on a basis less favourable to the plaintiff than that awarded by the judge; we also altered the order for costs.

5

For reasons which will in due course appear, it is necessary to set out the various heads of damage claimed and the amount claimed by the plaintiff before Sedley J., the amount of the judge's award, whether or not it was subject to appeal and the amount awarded on appeal. It is not necessary to refer to the interest figures.

Nature of the claim

Amount claimed

Amount awarded by Judge

Whether appealed

Award by Court of Appeal

1. General damages. +

£37,500.00

No

2. Past loss of earnings

£747,455

£411,650.39

Yes

£276,937.64

*

3. Future loss of earnings +

£1,045,725

£561,488.00

Yes

£266,533.00

*

4. Doctors' & Psychologist fees

Past

Future

£4,545

£1,820

£4,545.00

£1,400.00

No

No

5. Past care by Mrs. Vernon.

Secretarial

Domestic and other.

£69,975

£9,304

£20,000.00

Yes

£9,304

6. Future care.

Occupational therapy—+

1999

Occupational therapy after 1999 +

Domestic help +

Gardener / handyman +

Nanny +

Future secretarial assistance +

£51,452

£18,300

£41,743

£13,430

£32,543

£6,443.97

£51,452.50

£14,640.00

£41,574.00

£3,952.00

Yes

Yes

Yes

Yes

Nil

Nil

£10,233.60

£3952.00

6

* These figures are subject to correction.

7

+ In respect of these claims the plaintiffs mental condition at the time of judgment by

8

Sedley J. and the future prognosis were or might well be relevant.

9

The claim for nearly £3 million in respect of Parearo is no longer relevant, nor are relatively small claims for travelling and sundries, which the judge awarded.

10

When the draft judgments of this court were handed down issues arose as to the correct calculation of the past and future loss of earnings, which affected the calculation of interest. These matters were therefore adjourned in the hope that the parties could agree; failing which the matter would have to be re-argued on these points. No such agreement had been reached and no final order of this court had been drawn up, when on or about 17 April 1996 Mr O'Brien QC received through the post from an anonymous sender copies of a judgment of HH Judge McNaught given on 6 January 1995 in the Gloucester County Court in certain proceedings under section 8 of the Childrens Act 1989 between Mr and Mrs Vernon relating to their three children, together with a copy of the judgment of the Court of Appeal ( Russell LJ and Wall J.) delivered on 4 July 1995, dismissing the plaintiff's appeal from the judgment of HH Judge McNaught.

11

These judgments reveal that the evidence before the Family Court was that Mr Vernon's psychiatric health had dramatically improved since September 1993 and that he was substantially, if not fully recovered. This appeared to be the effect of the evidence of his medical specialists, Dr Lloyd, a consultant psychiatrist, and Mr Mackay, a clinical psychologist, both of whom had given evidence before Sedley J. It appeared to the defendant's legal advisors that this evidence was materially different to the picture presented to Sedley J. and this court, and in particular it might affect the judge's findings as to the plaintiff's state of health at the time of the judgment and to the prognosis for the future. This would affect the level of general damages and also elements of future loss.

12

The present application

13

Accordingly on 30 April 1996 the defendant applied to this court that the appeal be listed for rehearing, for discovery and inspection of the relevant reports and evidence and, by amendment leave, either of this court or Judge McNaught, pursuant to rule 4.23 of the Family Proceedings Rules 1991 to inspect and take copies of the relevant documents and evidence. Initially the plaintiff resisted disclosure of the evidence. However by letter dated 19 September 1996 his solicitors indicated that they waived any objection to discovery or privilege and applied to Judge McNaught for leave under rule 4.23 which was readily granted.

14

In the result the court has had placed before it evidence adduced in the Family Proceedings consisting of reports of Dr Lloyd and Mr Mackay and notes of their oral evidence, affidavits, notes of evidence and transcript of evidence of Mr Vernon and notes of evidence given by Mrs Vernon and transcripts of evidence of two other witnesses given on a review hearing on 12 December 1995.

15

It is desirable at this stage to set out the relevant history of the family proceedings and the personal injury action. The writ in the latter was issued on 8 August 1985. In September 1992 Mrs Vernon left the matrimonial home. She immediately applied for a residence order, which was granted on an interim basis. In February 1993 she sought judicial separation, subsequently amended to a petition for divorce. In March 1993 Mrs Vernon was granted a residence order in relation to the children, reasonable contact to the plaintiff; she also applied to oust the plaintiff from the matrimonial home. In April and May Mr Mackay and Dr Lloyd furnished reports in the Family proceedings to the effect that if the plaintiff was ousted from the matrimonial home, he might commit suicide; these reports were disclosed by the plaintiff in the personal injury litigation and used in support of his case. In July Mrs Vernon withdrew her ouster application. In October she was granted a divorce. In the personal injury action Dr Lloyd provided a report dated 14 May 1993, and Mr Mackay one dated 18 November 1993. The trial started before Sedley J. on 12 January 1994. Mr Vernon gave evidence over many days during the early part of the trial. Mr Mackay and Dr Lloyd gave evidence after the Easter break between 18 and 22 April. The evidence as a whole was concluded on 14 July.

16

On 8 August Mr Vernon applied for a residence order in respect of his children. In support of his application reports were obtained from Mr Mackay and Dr Lloyd. In their letters of instructions to these two experts dated 28 September 1993, Messrs. Thring and Long (the plaintiff's matrimonial solicitors) said:

"we need to show that his mental health has improved dramatically since the date of your report in May 1993 and moreover that it has improved again since the conclusion of his big personal injury case."

17

There are two reports from Mr Mackay; the first is dated variously 14 or 17 October, the second dated 31 October or 1 November. Both purport to be progress reports on the plaintiff from May 1993 to October 1994. They are in broadly the same form, but there are substantial differences. I am not satisfied...

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