"[It] was not, I consider, a dead end job as was suggested to Mr. Vernon in cross-examination. Nor, however, was it the hive of high powered activity and the source of high calibre experience and learning which Mr. Vernon's proof insists it was. It was a middle-ranking job with a small labour force, which threw up unexpected challenges to which Mr. Vernon rose, just as he has risen to specific challenges in sports events at school and in his career in the Army. It was not a post in which anyone could be a high flyer or acquire the techniques of high flying."
"You informed me that some senior officers of the company were not satisfied with my performance, in that I had low credibility with them and that consequently my application for the advertised post of GM RX Nigeria would not be successful. You also added that my future prospects in the company were almost nil and so you asked me to consider some sort of `package' whereby my contract of employment might be terminated on mutually satisfactory terms."
"He was a man who externally was able to impress his peers and with the admiration and loyalty of his subordinates, but who repeatedly attracted the critical notice of those to whom he was answerable who defended himself by criticising their impartiality." "
"Neither the immediate nor the long-term pre-accident medical history demonstrates that Mr. Vernon was a sufferer from or prone to mental illness, although the extremes of his reactions to stress, when trapped by it, could lead to physiological behavioural or social disfunction. But these were tendencies which, on the evidence, never became apparent to the large number of individuals who were his colleagues and staff at work and who formed his social and family circle. While his manner and personality cannot have been to everybody's liking, he functioned socially and in employment from day to day and from year to year as a normal individual."
"He complained of feeling very tense, drained of emotional reserves, being inefficient and being unable to make decisions. He also felt very frustrated and that everything was a great effort and that he could not sustain concentration. During this examination he was severely tense, over-excited and moderately depressed. He talked very rapidly and occasionally broke down in tears, weeping profusely. His level of intelligence seemed well above the average and he frequently expressed feelings of guilt that he could not keep control of his emotions. He seemed in need of fairly urgent help and his admission to hospital would have been indicated if he had not been about to go on a skiing holiday. I arranged with his family doctor for him to have a fairly strong tranquilliser at night time together with a hypnotic."
"It is hard to gauge whether Dr. Cuthill was readier than he should have been to credit the distress that Mr. Vernon was manifesting, or whether Mr. Vernon was manifesting a level of distress so extreme that any examining doctor might have responded as Dr. Cuthill did. In so far as it was the plaintiff who applying pressure by his conduct, I am ready to accept that there may have been a manipulative element in it, but I will have to return to the question whether such manipulative behaviour in Mr. Vernon is calculated or compulsive."
"Have been under considerable pressure for many years and this has increased (see list of company problems). ............ Situation now thoroughly unsatisfactory. I cannot afford to be incapacitated so long - risk losing the house, career etc., and must start job acquisition programme immediately, but am currently not well enough to do so. ............I feel I must see a specialist who has insight into business related neurosis. I must know the extent and nature of the problem so that it is diagnosed very specifically. Also to know what drug to take for speedy remedy if this problem recur in future situation, also for own peace of mind so that I can plan more effectively career developments etc. Dr. Cuthill was brought in by the lawyer handling the insurance claim re children, and they are commercial considerations. These other aspects need treating separately."
"In answer to your specific enquiry may I state the following. 1. Diagnosis: he suffers from depression and is currently on a fairly high does of antidepressant. He remains rather emotionally vulnerable in relation to adverse circumstances, the most notable of which is that he is unemployed and has been unable to acquire a job commensurate with his previous work record and appropriate to his experience. 2. He certainly still has depressive symptoms but is not currently a suicidal risk. He remains deeply frustrated and unhappy at his current circumstances and at times can become quite distraught. The medical treatment however is limited because I see this as a condition which is perpetuated by his current protracted litigation over which he has little control and specific psychiatric treatment has a limited role."
"But to describe it without more as manipulative begs the question: who was being manipulated - McDonnell Douglas or Mr. Mackay? Each was witnessing a different persona of Mr. Vernon. A critical issue is whether one or each was a reaction to his situation, the first by playing the smart executive, the second by playing the broken reed. For many individuals this would be a quite unrealistic way of putting it: the contrast would be between normality and abnormality. But for Mr. Vernon there had always been, in my view, a major element of role-playing in his executive posts. Putting it perhaps unkindly, he may have been a poseur but he was not an imposter."
"A. The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, eg., serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence. B. The traumatic event is persistently re-experienced in at least one of the following ways: (1) recurrent and intrusive distressing recollections of the event (in young children, repetitive play in which themes or aspects of the trauma are expressed), (2) recurrent distressing dreams of the event, (3) sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative (flashback) episodes, even those that occur upon awakening or when intoxicated), (4) intense psychological distress at exposure to events that symbolize or resemble an aspect of the traumatic event, including anniversaries of the trauma. C. Persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following: (1) efforts to avoid thoughts or feelings associated with the trauma, (2) efforts to avoid activities or situations that arouse recollections of the trauma, (3) inability to recall an important aspect of the trauma (psychogenic amnesia) (4) markedly diminished interest in significant activities (in young children, loss of recently acquired developmental skills such as toilet training or language skills), (5) feeling of detachment or estrangement from others, (6) restricted range of affect, eg., unable to have loving feelings, (7) sense of a foreshortened future, eg., does not expect to have a career, marriage, or children, or a long life. D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by at least two of the following: (1) difficulty falling or staying asleep, (2) irritability or outbursts of anger, (3) difficulty concentrating, (4) hypervigilance, (5) exaggerated startle response, (6) physiologic reactivity upon exposure to events that symbolise or resemble an aspect of the traumatic event (eg., a woman who was raped in an elevator breaks out in a sweat when entering any elevator). E. Duration of the disturbance (symptoms in B, C and D) of at least one month. Specify delayed onset if the onset of symptoms was at least six months after the trauma."
"The law will not compensate such a person for the mental anguish and even illness which may flow from having lost a wife, parent or child or from being compelled to look after an invalid although there is a statutory exception to this where the victim dies as a result of the accident and the victim is his widow or minor unmarried child.... Beyond this, however, the law in general provides no remedy however severe the consequence of the distress or grief may be to the health or well being of the third party and however close his relationship to the victim."
"In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant." and at p. 43A "
"It should not be for the whole of the mental anguish and suffering which she has been enduring during the last five or six years. It should be only for the additional element which has been contributed by the shock of witnessing the accident, and which would not have occurred if she had not suffered that shock. It is a difficult distinction to draw, but I think the judge has laid a proper foundation and has found a right ground of decision, namely, that where there is an extra element which has been added by the shock of witnessing the accident, that is a proper subject of compensation."
"I do not consider that I am limited to answering yes or no to a particular diagnosis posited by one or other party. The question I have to answer is the one posed above. Among the competing diagnoses and aetiologies are the signposts to a conclusion which must in the end be my own."
"I believe that there is force in the contention made on the defendant's behalf that the expert witnesses who have treated the plaintiff, Dr. Cuthill and Dr. Lloyd, both psychiatrists, and the clinical psychologist Mr. Mackay, have all of them assumed the very thing which the plaintiff in this action is required to prove, namely that he is suffering from PTSD. All three were, of course, treating him, and Dr. Lloyd inherited him as a patient at quite a late date. So it is principally upon Mr. Mackay and Dr. Cuthill that the criticism rests, and particularly upon the latter since it was he who switched from medico-legal diagnosis to treatment in reaction to Mr. Vernon's distressed presentation at the first interview. I am not prepared to accept this as a valid critique of the professionalism of any of these witnesses, but it does present me with the problem that each has been working from an established hypothesis rather than setting out first to test the hypothesis against others. However, the two psychiatrists called for the defendant, Dr. Swan and Dr. Gaind, can be seen for reasons which I have already given to have become comparably `parti pris' again not through lack of professionalism but through the osmotic process which is an almost inevitable incident of litigation of this intensity. This is why I have found assistance in the evidence of all the expert witnesses but do not believe that any one of them has offered a satisfactorily comprehensive account of Mr. Vernon."
"If the right test is personal to the plaintiff, then with more hesitation I nevertheless hold that more probably than not Mr. Vernon would have grieved but eventually recovered as his wife did, had he learnt of the loss of his daughters but not actually witnessed it. Such a judgment can be no more than educated guesswork (which is another reason for thinking that the law does not call for it); much would depend, for example, on how the news was broken; but I find it possible to visualise a less immediate awareness permitting Mr. Vernon to cope, as in the event he did not, with the loss."
"It is because of the prominent role played by Mr. Vernon's personality in the eventual loss of function that I think it safe to conclude that it was witnessing the accident that brought [his present position] about. The peculiarity of Mr. Vernon's case lies in the complexity and fragility of the man: throughout his life personality and mental state have reacted upon one another, so that one cannot look in him for text book conditions in isolation but must try, with the help of expert evidence, to understand as best one can the whole individual. Thus although his condition from the start included features both of post traumatic stress disorder and of pathological grief, it was not a text book example of either condition. The principal defect of the trauma, mediated by these features, was on a personality which, unable to cope with them, has given way to what is now an inexplicable mixture of psychiatric disorder, personality disorder and, I strongly suspect iatrogenic basis in the manifestation of both. It is those paranoid and neurotic traits demonstrated by the defendant's evidence but not amounting before 1982 to true disorders which have been inflated by the trauma of the index event into major psychiatric and personality disfunctions."
"For the most part the professional witnesses have treated this account, explicitly or implicitly, as another piece of post hoc confabulation. I am not so sure. The self-justificatory exegesis in the second part of the passage (`My subsequent behaviour and feelings should be considered in the light of this premonition' etc.) is one of many examples of Mr. Vernon's tendency to assert intellectual control over everything he is describing. But the `premonition' itself in my judgment rings true. This was a crisis of utter impotence without precedent in Mr. Vernon's life."
"Mr. Dougal Mackay, a clinical psychologist who has been treating Mr. Vernon, suggested - and I find this useful - that the stress-prone, competitive and controlling type of personality which is Mr. Vernon's may retreat from unmanageable stress into `learned helplessness' (see Human Helplessness ed. Garber and Seligman, 1980) and that such a personality, faced with feelings of helplessness, may react dysfunctionally to grief (see Worden, Grief Counselling and Grief Therapy , 1982). The article "
"Precisely because these have been reactive and not endogenous changes, they have waxed and waned in relation to other life events. Thus during the lifetime of Paraero, and in spite of the succession of major problems bedeviling it, the stimulus of the job enabled him to function adequately in it, although not with the same grip as before; and correspondingly when the business failed, the anchorage it had provided went with it, with the result that from then on - apart from the again characteristic rally which nearly got him the McDonnell Douglas job - he sank into the kind of demanding helplessness which has seen the collapse of his marriage and the fading of all serious employment prospects. Of all these things the witnessing of the accident was not the sole cause, but it was the initiating cause of an uneven but perceptible sequence of mental deterioration and personality collapse in an already vulnerable individual."
"170. We believe that Mr. Vernon would, despite the failure of his business, have been regarded as an impressive and viable businessman, who would have had no difficulty in finding worthwhile employment. 171. In our opinion, whilst the fact that the failure of his business would have affected the level at which he could have expected to find employment, he would still have been able to find a position similar to that outlined in paragraphs 153-155 above although at a lower salary."
"But apart from the possibility which we all face of some unexpected and dreadful event in our lives, and to which Mr. Vernon was more vulnerable than many others, had the accident not happened he would have remained accident-prone following the probable failure of Paraero in 1986 and his re-entry into the executive employment market. The auguries for finding highly-paid executive employment and keeping it steadily until retirement were not good, whether one ascribes the problem, as Mr. Vernon does, to incompetence among superiors or, as I do, to an inability in Mr. Vernon to accommodate his self-esteem to the sort of challenge from above which, justified or unjustified, is largely unavoidable in corporate structures."
"Much more probably he would have been at risk in the future, as he had been in the past, of locking horns unnecessarily with his superiors, jeopardising jobs in which he was otherwise capable of functioning perfectly well and sometimes exceptionally well as an organiser and leader of others."
"Mr. Vernon had always used his wife as an unpaid personal secretary, dictating memoranda and correspondence to her. It was part of the domestic relationship and it deserves to be reflected as such. The best way I can do this is to enlarge the sum which I allow to the Plaintiff, as a debt owed to his ex-wife, for the additional work thrust upon her and done by her to take care of Mr. Vernon in his more than previously dependent and demanding state. I would place a value of£20,000 on this element as a whole"
"In my judgment Mr. Vernon needs both stimulus and physical help, not to enable him to remain supine for the rest of his life but to assist him in regaining sufficient self-esteem and motivation to live a life on his own.....It will include occupational services for a reasonable period of time."
"The behaviour remarked upon in....the judgment manifested itself in my contact with the plaintiff and seriously inhibited my preparation of this case. The amount of work was so compounded by his condition that I had to seek authority from the Legal Aid Board to apply additional resources to it. At times and for brief periods the plaintiff could work effectively, but those occasions were exceptions and were not sustained. His concern for minutiae gave rise to a need to examine particular events and hundreds of documents in minute detail and an inability to sustain concentration meant that he could not stick to the points in question. The same ground was covered again and again in spite of all my efforts. The learned Judge's reference to `an uncontrollable urge to depart from the point and travel down endless byways of dialogue' is behaviour which I recognise well. This is exemplified by the 61 meetings (full days!) it took to prepare witness statements from the plaintiff and his wife."
"The Plaintiff will have been kept out of the sum awarded to him by his own fault. The fact that the defendants have had the use of the money during this time is no good reason for excusing that fault and allowing interest to run during that time". (b)It is intended to act as a discipline so as to discourage delay. Since the prosecution of the action is primarily in the hands of the plaintiff, it is essential that he does so with reasonable diligence. The defendant can only apply to strike out the action for want of prosecution if he can show that there is a risk that there can no longer be a fair trial or that he has suffered prejudice. In practice, this is often a difficult hurdle to surmount. (c)To prevent injustice to the defendant because delay in personal injury cases, especially where there are substantial claims for past or future loss of earnings and cost of care, may well result in the defendant paying more, even when allowance is made for the fact that by paying later he had the use of the money meanwhile and he will be paying in money that has decreased in value because of inflation. He relies upon the decision of Hayes v. Bowman[1989] 1 WLR 456 . That was a striking out case, but similar principles relating to inordinate and inexcusable delay are applicable when the court is considering depriving the plaintiff of interest on this ground. Mr. O'Brien points to the fact that the plaintiff argued inter alia in that case that there was no financial prejudice to the defendant because the trial judge would exercise his discretion to deprive the plaintiff of two year's interest: see per Purchas L.J. at 462G and Slade L.J. at p. 468F. Mr. O'Brien put figures before this Court, though not to the Judge, designed to illustrate the prejudice to the Defendant in this case unless some adjustment to the interest is made. 3. That the Judge appears to have been wrongly influenced by the fact that the Defendant did not apply to strike out the action for want of prosecution, when in December 1990 the Plaintiff had to give notice of intention to proceed. It is true that the Judge mentioned the fact that the Defendant did not so apply; but I do not think this formed any part of his reasoning not to deduct interest. If it had been, I agree it would have been an error, because, as I have already pointed out, in general a defendant cannot make a successful application to strike out unless he can show prejudice. I turn then to consider Mr. O'Brien's submission based on Martin v. Turner . That was a striking out case. There had been inordinate delay. The plaintiff sought to argue that it was not inexcusable because the delay was attributable to his mental condition and this was said to be due to the effects of the accident, at least in part. That case was supported by the opinion of a psychiatrist, but the court obviously considered his evidence did not go far enough to establish the premise. At p. 85H Davies L.J. said: "
"Every person in this country who is of full age and suffering from no disability is entitled to come to the court and, in accordance with the rules of the court, conduct litigation in an attempt to recover damages, or assert another claim, in respect of what he has suffered."
"If he had taken that view , proceedings could have been brought under RSC Order 30, which would have enabled representation to be afforded and the claim to have been competently presented on behalf of the plaintiff. If he was not under such a disability as can be dealt with under the provisions of that rule, he must be held responsible for his process of litigation or for his failing to follow any due process of litigation."
"The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or a part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs."
"The common features of all the reported cases of this type decided in this country ...... and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff`s nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff`s perception of it combined with a close relationship of affection between the plaintiff and the primary victim."
"Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."
"Although we continue to use the hallowed expression `nervous shock`, English law, and common understanding have moved some distance since recognition was given to this symptom as a basis of liability. Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact."
"The basic difficulty of the subject arises from the fact that the crucial answers to the questions which it raises lie in the difficult field of psychiatric medicine. The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness."
"Somehow or the other the court has to draw a line between sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable."
"There are, as I hope will be apparent already, two psychiatric illnesses to consider: PTSD, the first; and PGD, the second. As to the first - PTSD - that is almost, by definition, a condition due to the accident, the collision or its aftermath. That is the trauma which forms part of the title of the condition. The second - pathological grief disorder - almost, though not quite, by definition is not."
"The crucial question to be answered in this case is whether the sights and sounds which Mrs Calascione experienced on21st December 1985 , caused or contributed to her PGD and, if so, for how long."
"Nevertheless all their lordships in that case continued to use the phrase `nervous shock`, albeit in inverted commas. I think it is a convenient phrase to describe mental injury or psychiatric illness to distinguish it from, on the one hand, grief and sorrow and, on the other, physical or organic injury. The psychiatric illness does not have to have any particular label or term of art applied to it."
"The death of his children did set him back a little but did not produce a severe depression. Mr Vernon had grieved properly and recovered from bereavement within a short time. Business worries, loss of business, domestic worries, bereavements and accident in 1985 seem to have triggered off more serious depressive episodes requiring treatment with antidepressants."
"Finally I do not believe he does, or ever did, suffer from post traumatic stress disorder."
"Since the beginning of this trial on 11th January this year I have attended court on many days."
"But I do want you to understand that I have tried to be fair to the court and be conservative in what I feel Mr Vernon would have earned. I have not sought to exaggerate it and I have sought to base it on what I felt his experience and success as a young man would have led him to achieve in later life."
"Q. I take it you have read his statement? A. Yes, I have had sight of it. Yes. Q. Did you give the advice you gave on the basis that that statement represented the truth? Is that the basis upon which you have given it? A. The advice I gave was before I had read that statement. Q. Yes, but having read that statement is your advice now, at this point in time, on the basis that statement was true? A. Yes. Q. Were you in court when he gave evidence? A. No. Q. So the final version of your view is on the basis that statement is all true and correct, and gives a correct impression of Mr Vernon? A. Yes."
"Q. Mr O`Brien asked you about the information upon which you based your report and about CVs, the statement and so forth. Can you say in a nutshell what the information was upon which you based your understanding of Mr Vernon`s track record? A: The principal information I based it on was success in a blue chip company, ie Rank Xerox at almost its apex. It was at its strongest then. It was competing in new markets, new products were coming along. It was one of the best UK based professional sales companies. To have survived and prospered in that environment, as Mr Vernon did, indicates to me that he had something worth selling. That was the prime basis on which I would have based it."
"[It] was not, I consider, a dead end job as was suggested to Mr. Vernon in cross-examination. Nor, however, was it the hive of high powered activity and the source of high calibre experience and learning which Mr. Vernon's proof insists it was. It was a middle-ranking job with a small labour force, which threw up unexpected challenges to which Mr. Vernon rose, just as he has risen to specific challenges in sports events at school and in his career in the Army. It was not a post in which anyone could be a high flyer or acquire the techniques of high flying."
"You informed me that some senior officers of the company were not satisfied with my performance, in that I had low credibility with them and that consequently my application for the advertised post of GM RX Nigeria would not be successful. You also added that my future prospects in the company were almost nil and so you asked me to consider some sort of `package' whereby my contract of employment might be terminated on mutually satisfactory terms."
"He was a man who externally was able to impress his peers and with the admiration and loyalty of his subordinates, but who repeatedly attracted the critical notice of those to whom he was answerable who defended himself by criticising their impartiality." "
"Neither the immediate nor the long-term pre-accident medical history demonstrates that Mr. Vernon was a sufferer from or prone to mental illness, although the extremes of his reactions to stress, when trapped by it, could lead to physiological behavioural or social disfunction. But these were tendencies which, on the evidence, never became apparent to the large number of individuals who were his colleagues and staff at work and who formed his social and family circle. While his manner and personality cannot have been to everybody's liking, he functioned socially and in employment from day to day and from year to year as a normal individual."
"He complained of feeling very tense, drained of emotional reserves, being inefficient and being unable to make decisions. He also felt very frustrated and that everything was a great effort and that he could not sustain concentration. During this examination he was severely tense, over-excited and moderately depressed. He talked very rapidly and occasionally broke down in tears, weeping profusely. His level of intelligence seemed well above the average and he frequently expressed feelings of guilt that he could not keep control of his emotions. He seemed in need of fairly urgent help and his admission to hospital would have been indicated if he had not been about to go on a skiing holiday. I arranged with his family doctor for him to have a fairly strong tranquilliser at night time together with a hypnotic."
"It is hard to gauge whether Dr. Cuthill was readier than he should have been to credit the distress that Mr. Vernon was manifesting, or whether Mr. Vernon was manifesting a level of distress so extreme that any examining doctor might have responded as Dr. Cuthill did. In so far as it was the plaintiff who applying pressure by his conduct, I am ready to accept that there may have been a manipulative element in it, but I will have to return to the question whether such manipulative behaviour in Mr. Vernon is calculated or compulsive."
"Have been under considerable pressure for many years and this has increased (see list of company problems). ............ Situation now thoroughly unsatisfactory. I cannot afford to be incapacitated so long - risk losing the house, career etc., and must start job acquisition programme immediately, but am currently not well enough to do so. ............I feel I must see a specialist who has insight into business related neurosis. I must know the extent and nature of the problem so that it is diagnosed very specifically. Also to know what drug to take for speedy remedy if this problem recur in future situation, also for own peace of mind so that I can plan more effectively career developments etc. Dr. Cuthill was brought in by the lawyer handling the insurance claim re children, and they are commercial considerations. These other aspects need treating separately."
"In answer to your specific enquiry may I state the following. 1. Diagnosis: he suffers from depression and is currently on a fairly high does of antidepressant. He remains rather emotionally vulnerable in relation to adverse circumstances, the most notable of which is that he is unemployed and has been unable to acquire a job commensurate with his previous work record and appropriate to his experience. 2. He certainly still has depressive symptoms but is not currently a suicidal risk. He remains deeply frustrated and unhappy at his current circumstances and at times can become quite distraught. The medical treatment however is limited because I see this as a condition which is perpetuated by his current protracted litigation over which he has little control and specific psychiatric treatment has a limited role."
"But to describe it without more as manipulative begs the question: who was being manipulated - McDonnell Douglas or Mr. Mackay? Each was witnessing a different persona of Mr. Vernon. A critical issue is whether one or each was a reaction to his situation, the first by playing the smart executive, the second by playing the broken reed. For many individuals this would be a quite unrealistic way of putting it: the contrast would be between normality and abnormality. But for Mr. Vernon there had always been, in my view, a major element of role-playing in his executive posts. Putting it perhaps unkindly, he may have been a poseur but he was not an imposter."
"A. The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, eg., serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence. B. The traumatic event is persistently re-experienced in at least one of the following ways: (1) recurrent and intrusive distressing recollections of the event (in young children, repetitive play in which themes or aspects of the trauma are expressed), (2) recurrent distressing dreams of the event, (3) sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative (flashback) episodes, even those that occur upon awakening or when intoxicated), (4) intense psychological distress at exposure to events that symbolize or resemble an aspect of the traumatic event, including anniversaries of the trauma. C. Persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following: (1) efforts to avoid thoughts or feelings associated with the trauma, (2) efforts to avoid activities or situations that arouse recollections of the trauma, (3) inability to recall an important aspect of the trauma (psychogenic amnesia) (4) markedly diminished interest in significant activities (in young children, loss of recently acquired developmental skills such as toilet training or language skills), (5) feeling of detachment or estrangement from others, (6) restricted range of affect, eg., unable to have loving feelings, (7) sense of a foreshortened future, eg., does not expect to have a career, marriage, or children, or a long life. D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by at least two of the following: (1) difficulty falling or staying asleep, (2) irritability or outbursts of anger, (3) difficulty concentrating, (4) hypervigilance, (5) exaggerated startle response, (6) physiologic reactivity upon exposure to events that symbolise or resemble an aspect of the traumatic event (eg., a woman who was raped in an elevator breaks out in a sweat when entering any elevator). E. Duration of the disturbance (symptoms in B, C and D) of at least one month. Specify delayed onset if the onset of symptoms was at least six months after the trauma."
"The law will not compensate such a person for the mental anguish and even illness which may flow from having lost a wife, parent or child or from being compelled to look after an invalid although there is a statutory exception to this where the victim dies as a result of the accident and the victim is his widow or minor unmarried child.... Beyond this, however, the law in general provides no remedy however severe the consequence of the distress or grief may be to the health or well being of the third party and however close his relationship to the victim."
"In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."
"It should not be for the whole of the mental anguish and suffering which she has been enduring during the last five or six years. It should be only for the additional element which has been contributed by the shock of witnessing the accident, and which would not have occurred if she had not suffered that shock. It is a difficult distinction to draw, but I think the judge has laid a proper foundation and has found a right ground of decision, namely, that where there is an extra element which has been added by the shock of witnessing the accident, that is a proper subject of compensation."
"I do not consider that I am limited to answering yes or no to a particular diagnosis posited by one or other party. The question I have to answer is the one posed above. Among the competing diagnoses and aetiologies are the signposts to a conclusion which must in the end be my own."
"I believe that there is force in the contention made on the defendant's behalf that the expert witnesses who have treated the plaintiff, Dr. Cuthill and Dr. Lloyd, both psychiatrists, and the clinical psychologist Mr. Mackay, have all of them assumed the very thing which the plaintiff in this action is required to prove, namely that he is suffering from PTSD. All three were, of course, treating him, and Dr. Lloyd inherited him as a patient at quite a late date. So it is principally upon Mr. Mackay and Dr. Cuthill that the criticism rests, and particularly upon the latter since it was he who switched from medico-legal diagnosis to treatment in reaction to Mr. Vernon's distressed presentation at the first interview. I am not prepared to accept this as a valid critique of the professionalism of any of these witnesses, but it does present me with the problem that each has been working from an established hypothesis rather than setting out first to test the hypothesis against others. However, the two psychiatrists called for the defendant, Dr. Swan and Dr. Gaind, can be seen for reasons which I have already given to have become comparably `parti pris' again not through lack of professionalism but through the osmotic process which is an almost inevitable incident of litigation of this intensity. This is why I have found assistance in the evidence of all the expert witnesses but do not believe that any one of them has offered a satisfactorily comprehensive account of Mr. Vernon."
"If the right test is personal to the plaintiff, then with more hesitation I nevertheless hold that more probably than not Mr. Vernon would have grieved but eventually recovered as his wife did, had he learnt of the loss of his daughters but not actually witnessed it. Such a judgment can be no more than educated guesswork (which is another reason for thinking that the law does not call for it); much would depend, for example, on how the news was broken; but I find it possible to visualise a less immediate awareness permitting Mr. Vernon to cope, as in the event he did not, with the loss."
"It is because of the prominent role played by Mr. Vernon's personality in the eventual loss of function that I think it safe to conclude that it was witnessing the accident that brought [his present position] about. The peculiarity of Mr. Vernon's case lies in the complexity and fragility of the man: throughout his life personality and mental state have reacted upon one another, so that one cannot look in him for text book conditions in isolation but must try, with the help of expert evidence, to understand as best one can the whole individual. Thus although his condition from the start included features both of post traumatic stress disorder and of pathological grief, it was not a text book example of either condition. The principal defect of the trauma, mediated by these features, was on a personality which, unable to cope with them, has given way to what is now an inexplicable mixture of psychiatric disorder, personality disorder and, I strongly suspect iatrogenic basis in the manifestation of both. It is those paranoid and neurotic traits demonstrated by the defendant's evidence but not amounting before 1982 to true disorders which have been inflated by the trauma of the index event into major psychiatric and personality disfunctions."
"For the most part the professional witnesses have treated this account, explicitly or implicitly, as another piece of post hoc confabulation. I am not so sure. The self-justificatory exegesis in the second part of the passage (`My subsequent behaviour and feelings should be considered in the light of this premonition' etc.) is one of many examples of Mr. Vernon's tendency to assert intellectual control over everything he is describing. But the `premonition' itself in my judgment rings true. This was a crisis of utter impotence without precedent in Mr. Vernon's life."
"Precisely because these have been reactive and not endogenous changes, they have waxed and waned in relation to other life events. Thus during the lifetime of Paraero, and in spite of the succession of major problems bedeviling it, the stimulus of the job enabled him to function adequately in it, although not with the same grip as before; and correspondingly when the business failed, the anchorage it had provided went with it, with the result that from then on - apart from the again characteristic rally which nearly got him the McDonnell Douglas job - he sank into the kind of demanding helplessness which has seen the collapse of his marriage and the fading of all serious employment prospects. Of all these things the witnessing of the accident was not the sole cause, but it was the initiating cause of an uneven but perceptible sequence of mental deterioration and personality collapse in an already vulnerable individual."
"170. We believe that Mr. Vernon would, despite the failure of his business, have been regarded as an impressive and viable businessman, who would have had no difficulty in finding worthwhile employment. 171. In our opinion, whilst the fact that the failure of his business would have affected the level at which he could have expected to find employment, he would still have been able to find a position similar to that outlined in paragraphs 153-155 above although at a lower salary."
"But apart from the possibility which we all face of some unexpected and dreadful event in our lives, and to which Mr. Vernon was more vulnerable than many others, had the accident not happened he would have remained accident-prone following the probable failure of Paraero in 1986 and his re-entry into the executive employment market. The auguries for finding highly-paid executive employment and keeping it steadily until retirement were not good, whether one ascribes the problem, as Mr. Vernon does, to incompetence among superiors or, as I do, to an inability in Mr. Vernon to accommodate his self-esteem to the sort of challenge from above which, justified or unjustified, is largely unavoidable in corporate structures."
"Much more probably he would have been at risk in the future, as he had been in the past, of locking horns unnecessarily with his superiors, jeopardising jobs in which he was otherwise capable of functioning perfectly well and sometimes exceptionally well as an organiser and leader of others."
"Mr. Vernon had always used his wife as an unpaid personal secretary, dictating memoranda and correspondence to her. It was part of the domestic relationship and it deserves to be reflected as such. The best way I can do this is to enlarge the sum which I allow to the Plaintiff, as a debt owed to his ex-wife, for the additional work thrust upon her and done by her to take care of Mr. Vernon in his more than previously dependent and demanding state. I would place a value of£20,000 on this element as a whole"
"In my judgment Mr. Vernon needs both stimulus and physical help, not to enable him to remain supine for the rest of his life but to assist him in regaining sufficient self-esteem and motivation to live a life on his own.....It will include occupational services for a reasonable period of time."
"The behaviour remarked upon in....the judgment manifested itself in my contact with the plaintiff and seriously inhibited my preparation of this case. The amount of work was so compounded by his condition that I had to seek authority from the Legal Aid Board to apply additional resources to it. At times and for brief periods the plaintiff could work effectively, but those occasions were exceptions and were not sustained. His concern for minutiae gave rise to a need to examine particular events and hundreds of documents in minute detail and an inability to sustain concentration meant that he could not stick to the points in question. The same ground was covered again and again in spite of all my efforts. The learned Judge's reference to `an uncontrollable urge to depart from the point and travel down endless byways of dialogue' is behaviour which I recognise well. This is exemplified by the 61 meetings (full days!) it took to prepare witness statements from the plaintiff and his wife."
"We do not know to what extent this mental condition was caused by the accident. We do know that the plaintiff is apparently able to manage his own affairs; nobody has been appointed to represent him. It seems to me that one has to look at this quite objectively and asking - would a man who apparently is able to walk, talk and go about the place be reasonable in blocking the pursuit of his own claim for damages? In my opinion, it is quite impossible to say that he was justified, in the light of Dr. Blair's report, in the conduct which he has exhibited during all these years."
"Every person in this country who is of full age and suffering from no disability is entitled to come to the court and, in accordance with the rules of the court, conduct litigation in an attempt to recover damages, or assert another claim, in respect of what he has suffered."
"If he had taken that view , proceedings could have been brought under RSC Order 30, which would have enabled representation to be afforded and the claim to have been competently presented on behalf of the plaintiff. If he was not under such a disability as can be dealt with under the provisions of that rule, he must be held responsible for his process of litigation or for his failing to follow any due process of litigation."
"The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or a part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs."
"The common features of all the reported cases of this type decided in this country ...... and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff`s nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff`s perception of it combined with a close relationship of affection between the plaintiff and the primary victim."
"Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."
"Although we continue to use the hallowed expression `nervous shock`, English law, and common understanding have moved some distance since recognition was given to this symptom as a basis of liability. Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact."
"The basic difficulty of the subject arises from the fact that the crucial answers to the questions which it raises lie in the difficult field of psychiatric medicine. The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness."
"Somehow or the other the court has to draw a line between sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable."
"There are, as I hope will be apparent already, two psychiatric illnesses to consider: PTSD, the first; and PGD, the second. As to the first - PTSD - that is almost, by definition, a condition due to the accident, the collision or its aftermath. That is the trauma which forms part of the title of the condition. The second - pathological grief disorder - almost, though not quite, by definition is not."
"The crucial question to be answered in this case is whether the sights and sounds which Mrs Calascione experienced on21st December 1985 , caused or contributed to her PGD and, if so, for how long."
"Nevertheless all their lordships in that case continued to use the phrase `nervous shock`, albeit in inverted commas. I think it is a convenient phrase to describe mental injury or psychiatric illness to distinguish it from, on the one hand, grief and sorrow and, on the other, physical or organic injury. The psychiatric illness does not have to have any particular label or term of art applied to it."
"The death of his children did set him back a little but did not produce a severe depression. Mr Vernon had grieved properly and recovered from bereavement within a short time. Business worries, loss of business, domestic worries, bereavements and accident in 1985 seem to have triggered off more serious depressive episodes requiring treatment with antidepressants."
"Finally I do not believe he does, or ever did, suffer from post traumatic stress disorder."
"Since the beginning of this trial on 11th January this year I have attended court on many days."
"But I do want you to understand that I have tried to be fair to the court and be conservative in what I feel Mr Vernon would have earned. I have not sought to exaggerate it and I have sought to base it on what I felt his experience and success as a young man would have led him to achieve in later life."
"Q. I take it you have read his statement? A. Yes, I have had sight of it. Yes. Q. Did you give the advice you gave on the basis that that statement represented the truth? Is that the basis upon which you have given it? A. The advice I gave was before I had read that statement. Q. Yes, but having read that statement is your advice now, at this point in time, on the basis that statement was true? A. Yes. Q. Were you in court when he gave evidence? A. No. Q. So the final version of your view is on the basis that statement is all true and correct, and gives a correct impression of Mr Vernon? A. Yes."
"Q. Mr O`Brien asked you about the information upon which you based your report and about CVs, the statement and so forth. Can you say in a nutshell what the information was upon which you based your understanding of Mr Vernon`s track record? A: The principal information I based it on was success in a blue chip company, ie Rank Xerox at almost its apex. It was at its strongest then. It was competing in new markets, new products were coming along. It was one of the best UK based professional sales companies. To have survived and prospered in that environment, as Mr Vernon did, indicates to me that he had something worth selling. That was the prime basis on which I would have based it."