Newman v Laver & Anor [2006] EWCA Civ 1135

Case No B3/2005/2112

[2006] EWCA Civ 1135

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM BRISTOL DISTRICT REGISTRY (QUEEN'S BENCH DIVISION)

HHJ BURSELL QC

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Monday 31 st July 2006

Before

LORD JUSTICE WARD

LORD JUSTICE RIX

LORD JUSTICE GAGE

Between

NewmanAppellant

Laver & anrRespondents

(Transcript of the Handed Down Judgment of

Smith Bernal WordWave Limited

190 Fleet Street, London EC4A 2AG

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Mr David Foskett QC and Mr Robert Percival (instructed by The Jolly Williams Partnership) for Appellant

Mr Jonathan Watt-Pringle (instructed by Messrs Davies Arnold Cooper) for Respondents

Judgment

[1]On 21 September 1999 Mr Paul Newman was involved in a road traffic accident near his home in Sherborne, Dorset. His car was struck from behind by another car driven by Mrs Anne Laver, at a speed of some 20-25 mph, when her vision was blinded by the sun. His car was quite badly damaged. The impact of the collision caused his head to strike the headrest “relatively hard”, as the judge found. Mr Newman was seen at hospital. In the days and weeks after the accident, he suffered from whiplash and what the judge described as a post concussional syndrome, viz blurred vision, dizziness, headaches, nausea, tinnitus and lack of concentration. That syndrome, so far as it had any organic cause, ended by August 2000, but by then it had become overlain by psychological factors which caused the symptoms to persist. The judge found that these symptoms would continue to endure, but would gradually ameliorate, over the course of another two to three years after trial. Mr Newman was therefore compensated on that basis, in large part for loss of income before and after trial, in the total sum of £194,687.40 plus interest.

[2]Liability had been admitted, and so the trial was only concerned with quantum. However, the extent of Mr Newman’s injuries, their cause, and their consequences were generally in issue. A particular area of dispute was Mr Newman’s claim to be suffering from a disease known as bilateral monocular diplopia, a very rare form of double vision (“BMD”). Monocular diplopia is a double vision in one eye which is not alleviated by covering the other eye. It is rare in itself. Bilateral monocular diplopia is double vision in each eye separately, such that the covering of either eye in turn does not eradicate the symptom. Mr Newman claimed that his post-accident blurred vision had settled down at an early stage into BMD, and that it would continue for the rest of his life. As such, it would require compensation independently of, as well as cumulatively with, his other symptoms

The judge found that Mr Newman had failed to prove that he suffered from BMD.

[4]In this appeal, Mr Newman, as appellant, has many grounds but three main complaints. His primary complaint is that the judge had erred in failing to find that he suffered from BMD (and a subsidiary complaint is that the judge was not entitled to dispose of the issue on a mere burden of proof). Secondly, he complains that the judge was wrong, or unfair, to reject BMD on the basis, or the possible basis, that Mr Newman was making up his symptoms, ie was putting forward a dishonest claim: a challenge which had never been properly, if at all, made to him or to his witnesses. Thirdly, in connection with the post concussional syndrome, he complains that the judge had no evidence on which he could find that his health would be back to normal after only two to three years. In all three respects the judge’s errors were caused or compounded by inadequate reasoning. The judge should therefore have awarded loss of earnings and care on a long-term or life-time basis. This was one of those rare cases where a minor accident and injury had led, by misfortune, to very serious consequences.

[5]On behalf of Mr Newman, Mr David Foskett QC submits that in the light of these errors the judge’s judgment cannot stand. He goes further, however, and submits that this court, having come to that conclusion, should go on and find positively that Mr Newman has been and still is suffering from BMD and will do so for the rest of his life; and that he will also continue to suffer indefinitely from the effects of his psychologically engrained post concussional syndrome. He therefore asks us to be prepared to award Mr Newman revised damages beyond those awarded by the judge. At trial, Mr Newman’s claim totalled, at best, some £1.4 million. On this appeal, Mr Newman’s revised schedule still claims over £1.3 million plus interest.

[6]Mr Foskett submits that it would be far preferable for Mr Newman’s health, and would save costs, if this court could, by making its own findings, avoid the need for any retrial. However, there was no fear of any retrial.

[7]On behalf of the respondent, Mrs Laver, Mr Watt-Pringle submits that the judge’s careful and moderate judgment could not be faulted. The appeal was one on fact, and thus faced the difficulties for such an appeal described in Assicurazioni Generali SpA v. Arab Insurance Group

[2002] EWCA 1642

[2003] 1 WLR 577

: the appellant would have to show that the judge was plainly wrong. On the question of BMD, the judge was entitled to prefer the evidence of the defence experts to that of the experts for Mr Newman: whether he proceeded by means of rejecting the case of BMD or finding it not to have been proved, that was a conclusion to which he was entitled to come. There had been no unfairness in the process by which he had done so, and no irrationality based on an unexpressed defence of dishonest malingering. The judge had also been entitled to form the view that a psychological, and non-organic, syndrome would come to an end within two to three years of the conclusion of litigation.

The trial

[8]The trial took place before HHJ Bursell QC, sitting at Bristol. It began on 3 November 2003, but had to be adjourned on 5 November, in the middle of Mr Newman’s cross-examination, when he became too ill to continue. It was not possible to resume the trial until 21 June 2005. The evidence was completed by 29 June, and, following written submissions, there was a day of final oral argument on 26 July. The reserved judgment was handed down on 8 September 2005. While Mr Foskett draws these matters to our attention, and although this time-table was far from ideal, nothing turns on it save that there was ample opportunity for any lack of definition about the basis of the defence to be clarified.

Mr Newman

[9]Mr Newman was born on 22 February 1944 and was therefore 55 at the time of the accident. He was a fit and healthy man, with no history of any significant medical problems and in particular no problems with his vision. He was a skilled architectural draughtsman, and had worked in that capacity for some years for the National Trust, although he ceased from full-time drafting work in 1994. That was in order to devote himself to researching for a book, ultimately published in August 1996 (in hardback, and a year later in paperback), entitled “The Tomb of God”, which concerned the suggestion that the mortal remains of Christ may be interred in a mountain-side at Rennes-le-Chateau in south-west France. He was the principal co-author of this book, albeit a ghost-writer was also employed. This writing venture was in one sense successful, since it had earned Mr Newman and his co-author a handsome joint advance of £300,000 (out of which they had to meet their expenses including that of employing their ghost-writer). However, in another sense the publication was less successful, in that half of the books printed did not sell, and the advance exceeded earned royalties. Mr Newman wrote a synopsis of a sequel (“The Resurrection of Lucifer”) but this was rejected by his publishers. He also wrote parts of two further works, one of non-fiction, and one of fiction.

[10]Mr Newman had been married, but was divorced from his wife in 1993. He had a son, Andrew, born in January 1979. His ex-wife, Carin, remarried a Michael Salmon. Mr Newman remained on good terms with his ex-wife, and indeed with Mr Salmon, and, after his accident, the Salmons, and particularly Mrs Salmon, helped him in a number of ways. The Salmons and Andrew all gave evidence for Mr Newman at trial. Mrs Salmon was clearly a strong character, so much so that the defence explored a line of argument that she was instrumental in leading Mr Newman to become claims conscious and even less than scrupulously so. However, the judge rejected or did not accept the various strands of this argument, and it did not figure on this appeal. The judge said:

“I have no doubts about the genuineness of Mrs Salmon for whose goodness of intention and support for her family (including her ex-husband) I have enormous respect.”

[11]Mr Newman was something of a perfectionist with a rigid personality. Mr Foskett submits, on the basis of evidence given at trial, that such a man who suffers a relatively minor interference with his mental ability, is told that he will get better and is later told that he will not and that he may have an organic problem, can become demoralised, depressed and decline into a downward spiral.

The immediate aftermath of the accident

The judge’s findings are in these terms:

“At the hospital the claimant is recorded as having stated that there was no loss of consciousness, post traumatic amnesia or visual disturbance although he is also recorded as stating that he had difficulty focussing. On neurological examination he had no loss of vision or abnormal eye movement and is recorded as making no complaint of diplopia. His Glasgow coma score was 15 out of 15, that is, the best possible score. In spite of a possible discrepancy in the hospital record as to visual disturbance and difficulty focussing, as the record of no loss of consciousness was made within a few hours of the accident and is not in conflict with the claimant’s later memory, I find on a balance of probabilities that the claimant did not lose consciousness in the accident.”

[13]The only complaint Mr Foskett makes about those findings relates to the absence of loss of consciousness. Mr Foskett referred, as the judge did himself, to evidence from Dr Robin Jacobson, the defence’s consultant neuropsychiatrist, to the effect that it is possible to lose consciousness for a second or two, following an impact with the head, without any memory of that loss. Since the judge ended by finding a post concussional syndrome, Mr Foskett submits that he should have been prepared to infer a momentary loss of consciousness. However, Mr Foskett also accepts that this does not matter in practice, even if in theory it seems to be odd that the judge should have been prepared to find a post concussional syndrome in the absence of loss of consciousness, for the very reason that the judge was prepared to find a post concussional syndrome, a finding from which there is no appeal on the part of the respondent.

The first complaints and diagnoses of diplopia

[14]On 22 September 1999 Mr Newman visited his GP, whose notes refer to him feeling shaken up and “drunk”. A further visit to the GP on 28 September records him feeling dizzy. On 7 October there was a further visit and the GP noted:

“he says diplopia all the time but I could not elicit this”

. This is the first record of a medical complaint in these terms. On 20 October, following a further visit, the GP wrote:

“No better. Diplopia continues. Also dizzy occas[ionally]…Still unable to work as cannot concentrate on screen of computer. All very odd”

. On the same day he wrote to a consultant physician, Dr Beach:

“It is a very peculiar story and I am not sure how much is supratentorial and how much could be due to a strange presenting subdural haematoma”

. Dr Beach could not identify any particular problem, but advised a CT scan. On 8 November, the CT scan proved normal. However, Mr Newman’s complaint of diplopia continued and so he was sent to see an optician in Sherborne, Mrs Matthews, who examined him on 24 November. In her report dated 27 November she wrote:

“I was surprised to find he was experiencing monocular diplopia in both eyes”

. This was the first such diagnosis.

[15]On 24 January 2000 he told his GP that his double vision was “worse”. On 1 February he went to see a consultant ophthalmic surgeon, Mr Porter, whose letter to the GP dated 2 February 2000 said that since the accident “he has apparently suffered from what seems to be bilateral simultaneous monocular diplopia”, but “no abnormality whatsoever” could be found. He continued:

“Monocular diplopia is in itself, a rare condition and bilateral monocular diplopia must be excessively rare. He was keen for me to be able to quantify exactly his disability, particularly in view of his upcoming litigation but I have explained that since we can find no abnormality, I cannot quantify his defect at all. I am, in fact, at a complete loss to explain it…I have not arranged any further appointment.”

[16]In the meantime, Mr Newman had begun to correspond by email with a Mr Colyer who had approached him out of the blue at about this time to invite him to consider giving some lectures about the subject-matter of his book at an establishment which Mr Colyer owned at Rennes-le-Chateau. In his emails Mr Newman described the problems he was experiencing about his vision, albeit against the background of initial optimism that he would get better. The judge said that these emails were “very pertinent to whether he is telling the truth about (at least) his eye problems” and that they were “clearly of importance when considering the question of the claimant’s consistency and credibility”.

[17]Thus on 30 September Mr Newman wrote:

“I am at present homebound with concussion and whiplash…”

On 5 October he wrote:

“I still see double and have constant headache…”

. That was the first reference to seeing double, and shortly precedes his 7 October visit to his GP (see para 14 above).

[18]On 11 October he wrote:

“I am awaiting an appointment with the optometrist to see about the slight double vision I still have”

. On 26 October, after seeing Dr Beach, he wrote:

“They are pretty certain that there is no serious damage. However they are hedging their bets and want me to have a brain scan…”

Then on 13 November, after his scan, he wrote:

“I have had my brain scan. The radiologist did not see anything dangerous, but the consultant’s word is final…I am sure you appreciate that I have to have the all-clear first.”

On 4 December, which is after his visit to Mrs Matthews, he wrote that he was looking forward to meeting Mr Colyer; but on 19 January 2000 he wrote:

“Sorry for the silence. I have a rather worrying problem. Since the car crash I have had difficulty with my eyesight. It was assumed that this would improve within a few weeks, but this has not happened. In fact it appears to be getting worse” (Mr Foskett complains that the judge omitted reference to this “important” email.) Then on 24 February (after seeing Mr Porter) he wrote: “I have to say that it is getting me down, and I am worried that it is getting worse. It has to be faced that I may not be able to do the lectures. I had started to prepare new illustrations, but I cannot now see what I am doing on the computer screen. I feel nauseous most of the time. You can imagine, I think, what it is like to see everything as two partially overlapping images. However, I am an optimist, and will do whatever is necessary to improve…”

[19]On 7 March 2000, he wrote:

“I would certainly like to take you up on this if at all possible. The only reason for the qualification is that I have to ensure that my compensation claim progresses, and that I am available for medical appointments…”

Down to the issue of proceedings

[20]On 20 March 2000 Mr Newman wrote a long letter to his GP. He said:

“My condition is showing no improvement. I still have double vision, dizziness, nausea, and tinnitus since the incident… The double vision does not stop me from reading (or typing) for short periods, but is a strain, causes dizziness and nausea… When I look at the night sky all the stars are twins… An old friend, Andrew Richards, an eminent eye surgeon, has suggested referral to a neuro-ophthalmology clinic – what is your opinion? To my, admittedly, non-medical, but logical and scientific mind, the problem is going to be neurological rather than a physical defect in the eyes…”

[21]Mr Newman also spoke of a chiropractic view that damage in the occipital/upper spine region was the cause of the problem.

[22]As a result, arrangements were made to have Mr Newman seen by a consultant neurologist (Mr Hyman) and a consultant orthopaedic surgeon (Mr Gargan). In the meantime he was examined on behalf of the Benefits Agency on 6 July 2000. The report by a Dr Hudson said:

“…this man has suffered from nausea, headache, diplopia, impairment of memory and depression…on clinical grounds [I] feel there must be an intercranial lesion to account for his symptoms…”

[23]On 19 July 2000 Mr Newman was examined by Mr Nigel Hyman, consultant neurologist, who could find nothing to suggest an organic problem, but nevertheless recommended a brain MRI scan as being more sensitive than a CT scan. He also recommended consulting an ophthalmologist to establish whether there was an ocular explanation for the BMD, or whether it was a “functional” disturbance, ie without physical cause. He added:

“The remainder of Mr Newman’s symptoms, although clearly disabling, may not be due to organic disease. The pattern of his headache and mild loss of balance can all be present in depressive illness. It is certainly the case that if a patient has persistent mild double vision it is disabling and could produce a secondary mood disturbance.”

[24]On 7 August 2000 Mr Newman was examined by Mr Martin Gargan, consultant orthopaedic surgeon, who gave no definitive opinion but suggested that a depressive illness secondary to a significant whiplash injury could explain a large proportion of his symptoms. He found nothing wrong with Mr Newman’s spine.

[25]On 30 August 2000 Mr Newman was examined by Dr J Tarafder, specialist registrar in neurology, as a preliminary to the obtaining of a MRI scan. Dr Tarafder, in a brief letter to Mr Newman’s GP, said that he had reassured him that most of his symptoms cannot be explained by structural neurological disease and therefore should resolve with time. The letter also recorded, however, that Mr Newman’s symptoms were getting worse.

[26]On 21 September 2000 Mr Newman was examined, at the defendant’s insurers’ request, by Dr Philip Kennedy, consultant neurologist. His report was disclosed by the defence in November 2002 and he subsequently gave evidence at trial. Mr Newman described his symptoms to Dr Kennedy as “headaches, ringing in the ears, visual disturbance and dizziness”, plus nausea but not associated with visual disturbance. He was not on any medication. As for visual disturbance, Dr Kennedy wrote:

“The patient told me that the optician found double vision related to each eye and I was under the distinct impression that what was being described was bilateral monocular double vision”

. On examination, “I confirmed bilateral monocular double vision which was not totally identical in each eye”. He concluded that he must reserve judgment, since he had not seen Mr Newman’s complete medical records and was awaiting the results of the MRI scan: for the present, however:

“The remainder of the symptoms do not imply any significant structural disease, some of which clearly have no organic basis whatsoever, that is the bilateral monocular diplopia.”

[27]On 28 February 2001 the MRI scan took place and was completely normal.

[28]On 5 May 2001 Dr Kennedy wrote a supplemental report in which he considered Mr Newman’s medical records and the reports of Dr Hyman and Mr Gargan. He agreed that in his opinion Mr Newman’s symptomatology related to psychiatric disturbances but not to a severe whiplash injury or head injury. He recommended that Mr Newman see a psychiatrist for his depression, but that there was no need of an ophthalmologist. He quoted a leading text-book for the fact that monocular diplopia was almost never caused by organic disease, but was most often stress related.

[29]On 26 June 2001 Mr Newman was examined by Dr Gordon Plant, consultant neurologist, who gave evidence for him at trial. Dr Plant’s report is dated 16 August 2001. In it he distinguished between BMD and the other symptoms. As to the latter, his view was that they were entirely attributable to the accident causing concussion and a minor head injury and whiplash. He also thought the nausea and dizziness were due to damage to the vestibular apparatus, ie the balance of the inner ear. As to BMD, however, he continued as follows:

“The monocular diplopia is a more difficult question. The difficulty in focussing, which he reported immediately following the injury is common enough in concussion but it is very difficult to understand how this could have been transformed into the prolonged symptom of monocular diplopia. There are some features of the diplopia which suggest to me that it is organic and in this respect I do not agree with Dr Hyman. Mr Newman describes the location of the false image in great detail and clarity and is able to describe the images rotating when he rotates his head and becoming further apart as he looks from near to distance objects. All of this is exactly what would be expected from a distortion of the visual image of this type from whatever cause. Whilst I cannot explain the symptom in pathophysiological terms, his clear and consistent description is not what one hears from patients with ‘functional’ diplopia. I am sure this is a real symptom and will be disabling to Mr Newman because of the nature of his employment. I have encountered similar symptoms following head injury although I have not seen similar case reports in the literature”

(emphasis added).

[30]Thus at that stage Dr Plant favoured an organic cause for the BMD, in particular because of Mr Newman’s clear and consistent description of his symptoms. He raised the possibility that this was caused by head injury, but did not then go definitively further. However, in a supplementary report dated 27 February 2002 he stated that, although he did not know the reason for the BMD, he believed that on the balance of probabilities it was caused by Mr Newman’s injury in the accident.

[31]Dr Ian Baker, clinical psychologist with a specialism in neuropsychology, examined Mr Newman on 5 July and reported to his solicitors on 13 July 2001. Dr Baker was an expert witness for Mr Newman at trial. His concluded that Mr Newman had suffered a “mild head injury” in the accident and continued:

“Since the accident, Mr Newman has experienced a number of physical, cognitive and behavioural changes constituting a post-concussional syndrome. His symptoms include headache, tinnitus, double vision, nausea, unsteadiness, increased irritability, and reduced memory and concentration…In my opinion psychological factors are likely to play the primary role in this case. The justification for this is that there is no clinical evidence for the occurrence of any other than a very mild head injury.”

[32]He stated that full recovery from post concussional syndrome commonly occurs within three months after mild head injury, but a small minority of patients continue to report symptoms after twelve months. “There are no long term follow up studies examining recovery from post concussion syndrome following mild head injury. It is difficult therefore to predict whether his symptoms will improve in the future…”

[33]He added, however, that, other than to note that blurred vision is a commonly reported feature of post concussional syndrome, it was beyond his area of expertise to comment on the BMD. That of course was the particular expertise of Dr Plant. In a supplementary letter dated 22 February 2002 Dr Baker, having been informed, no doubt, of Dr Plant’s opinion that the BMD had an organic cause, said that, on the basis that such neurological damage could be attributed to the accident – “this then should be considered separately from his other continuing post concussional symptoms. The prognosis in this area is of course entirely in the domain of the Neurologist and in particular, Dr Plant. Clearly, continued double vision would significantly affect his employment prospects. Based on my opinion as outlined in my first report…that psychological factors are likely to be the primary maintaining factors in the remainder of his symptomatology cognitive therapy could improve these other symptoms.” (emphasis added).

[34]My understanding of this passage is that whereas the other symptoms of the post concussional syndrome should be looked at going forward as a psychological rather than an organic problem, the BMD, since organically based, had to be dealt with separately. In other words, the prognosis for recovery might be very different.

[35]At trial, the post concussional syndrome was dealt with separately from the BMD. The basis for that approach was presumably founded in the expert evidence which I have described above.

[36]Dr Baker commented further on the prognosis for the post concussional syndrome in a supplementary letter dated 19 July 2002. He said:

“In terms of demonstrated treatment efficacy I am afraid there is little empirical evidence to demonstrate the effect of cognitive behaviour therapy in patients who have sustained a mild head injury but in whom symptoms have persisted for greater than 12 months. There is good empirical evidence however from controlled outcome studies conducted over the past two decades that psychological treatment of patients with mild head injury can constitute an effective inoculation against protracted PCS.”

[37]On 18 December 2001 Mr Newman was examined by his other medical expert witness at trial, namely Dr Martyn Rose, consultant in neuropsychiatric rehabilitation. Dr Rose’s report, dated 19 December 2001, stated his conclusions:(1) that Mr Newman had suffered a more significant head injury than was originally recognised;

(2) that his symptoms were entirely genuine and disabling, with the BMD being secondary to damage in both cerebral hemispheres, ie a case of diffuse organic brain damage;

(3) that these symptoms were exacerbated by a psychological grieving reaction;

(4) that there was a question as to whether he could effectively administer his own affairs, but it was appropriate that he should have a litigation friend, a brain injury case manager and a buddy/coach; and

(5) that it was difficult to know whether or not his then state was to be regarded as permanent.

[38]Mr Newman issued his proceedings on 18 September 2002.

From issue of proceedings to trial

[39]Mr Newman’s particulars of claim relied on the reports of Dr Plant, Dr Rose and Dr Baker. His particulars of injury referred to whiplash, concussion, and at least a mild head injury perhaps amounting to diffuse organic brain damage. A list of sequelae started with monocular diplopia. In practical terms it was asserted that he was wholly incapable of work or independent existence. His schedule of loss and damage included damages for loss of earnings for writing (£62,000 for past loss and up to £152,000 for future loss) and for lecturing (£14,000 for past loss and £16,000 for future loss) and for drafting work for the National Trust (£5,000 for past loss and £188,000 for future loss based on a multiplier of 7.5 years), for care (some £475,000 for future care based on a multiplier of 16.65 years), and for accommodation, aids and equipment, holidays, etc.

[40]The defence admitted negligence and, as a result of the accident, some personal injury, loss and damage, but the nature and extent of those were not admitted. The contents of the reports of Drs Plant, Rose and Baker were not admitted.

[41]On 17 December 2002 judgment on liability was entered by consent, for damages to be assessed.

[42]On 6 January 2003 Mr Newman called his GP to his home, complaining of feeling very unwell. His blood pressure, normally a standard measurement, showed up at 200/100, a high reading. The GP’s note records the complaint as “unable to get out of bed this am; felt he was going to die or at least blackout. No nausea, vomiting, sweating and no dizziness. Slowly improved and walked out to meet me in the car from his house.” On 8 January and on 10 January, Mr Newman visited his GP at his surgery. On the first visit, his blood pressure was still high, at 160/80; on the second visit, it had fallen back to normal, 130/80. On 9 January, in a letter to his GP, Mr Newman wrote about this new development: “Then four days ago I woke in the morning to find myself as if on the verge of passing out…and the sensation of severe dizziness…I remain very unstable and still have the dizziness”.

[43]On 23 January 2003 there was another visit to the GP’s surgery. The notes recall the complaints as – “no better…living downstairs, not going out, cannot walk 25 yards as unsteady and has lost confidence to do so. Resting lots reading a little. Tinnitus. All symptoms worse in morning. Feels pulsation of heart in ears.”

[44]These notes assumed an unexpected significance at trial because a few days later, on 28 January 2003, Mr Newman went to London to attend assessments by Dr Robin Jacobson, consultant neuropsychiatrist, and Ms Elizabeth Tomlin, orthoptist, instructed by the defendant’s insurers: and on the same day he was secretly observed and recorded by video on behalf of the defendant during his time in London.

[45]Dr Jacobson prepared a lengthy report, dated 3 February 2003. Mr Newman told him that he had changed since the high blood pressure incident, with an increase in headache and less stability on his feet. At the end of the interview he stood up and was unsteady on his feet, and had to hold on to the wall. In Dr Jacobson’s opinion he had sustained no worse than a minor head injury, possibly without concussion. He had probably suffered a mild post concussional syndrome, even if it was unclear if he was really concussed, which ought to have lasted and probably did last no more than a year. His ongoing symptoms were difficult to explain, but Dr Jacobson’s opinion was that his complaints had been perpetuated on the basis of entering into a “sick role”, whereby he was comfortable with a routine which had been set up soon after the accident, with excellent support from Mrs Salmon. He was reluctant to move out of that sick role, probably because of inflexibility and rigidity, part of his pre-existing personality, and possibly influenced by his belief in a visual deficit. As to the BMD, he said “He has bilateral monocular diplopia, recorded as early as 7.10.99” but also explained – “It is a matter for other expert opinion to judge whether the visual deficit is organic (Dr Plant), or non-organic (Dr Hyman), or consciously exaggerated, at least in part.”

[46]As for his reliability, although he came across as very precise, methodical and believable, Dr Jacobson concluded that he “is not reliable, despite a deceptively reliable presentation at interview”. However, the principal reason he gave for that opinion, namely the inclusion of back pain in the medical records on 25 November 1999, which Mr Newman accepted he did not suffer from, may, as it turned out at trial, have been more due to the pressure of Mrs Salmon than any fault on the part of Mr Newman. Thus Dr Jacobson’s opinion in this respect is equivocal.

[47]Ms Tomlin is the head orthoptist at Guy’s Hospital and performed a series of rigorous tests on Mr Newman there. In her report dated 1 March 2003 she wrote – “The diplopia. In the right eye he complains of vertically and horizontally displaced images, the left image slightly higher than the right. In the left eye he complains of vertically and horizontally displaced images, the right image slightly higher than the left. He notices that these become more vertically displaced when his head is tilted to the left or right. It is worse for distance than near, having its maximum effect at 200 yards. Stars are seen singularly [sc singly]… SUMMARY Mr Newman has(1) a small well controlled divergent deviation

(2) a reduced level of fusion. This could well be improved with some exercises. But it is impossible to say if this would improve his symptoms.

(3) Excellent measurable stereopsis for near despite his symptoms. I cannot explain Mr Newman’s diplopia with a pathophysiological reason. It appears to him to be a very real symptom but from the above tests does not appear to be handicapping him for near.”

Mr Newman has

[48]Stereopsis (or stereovision, or 3D vision) is the eyes’ ability to fuse their images. At trial Ms Tomlin explained:

“He did remarkably well on this. His level of stereovision is what the RAF or CAA require to fly planes. It is hard to imagine that the claimant had problems with stereovision as this was the most demanding of the stereo tests I could have performed…This is one of the finest measures of stereopsis you can record.”

[49]On that day, 28 January 2003, Mr Newman went to London by car accompanied by Mr Salmon. The judge described the video evidence inter alia as follows: “11…His journey to London took some two hours and the claimant found such car travel unpleasant and fatiguing. Thereafter he underwent taxing visual tests with Ms Tomlin and a tiring two hour consultation with Dr Jacobson. After the tests the claimant walked through London with Mr Salmon for 40 minutes in an entirely normal manner and without showing signs of fatigue. At 5.03 pm and after Dr Jacobson’s consultation he is again seen walking through London without apparent fatigue or difficulty. At no time was he given any assistance by Mr Salmon. Before getting into his car there is no sign of his swaying. All this is in contrast with the claimant’s third statement in which he says: ‘This video has enabled me to see, for the first time, how I appear to others, and I am struck at how less obvious my perceived unsteadiness is. Whilst waiting for the taxi door to be opened prior to leaving London after the interview with Dr Jacobson, I was feeling extremely unwell…I was desperate to sit down and get off home, and felt myself to be swaying quite worryingly. This is not at all evident on the video…’ 12…However, having viewed the video I find the claimant’s appearance throughout is that of a person walking perfectly normally through busy streets…” ‘This video has enabled me to see, for the first time, how I appear to others, and I am struck at how less obvious my perceived unsteadiness is. Whilst waiting for the taxi door to be opened prior to leaving London after the interview with Dr Jacobson, I was feeling extremely unwell…I was desperate to sit down and get off home, and felt myself to be swaying quite worryingly. This is not at all evident on the video…’

[50]We were not asked to view the video for ourselves on this appeal. Mr Foskett accepts the judge’s description of what it shows.

[51]At trial, Mr Newman was taxed with the video in cross-examination. In particular, he was asked to comment on his complaints to his GP recorded in the notes for 23 January 2003 (see at para 43 above), as contrasted with what the video showed. The judge described the contrast as a “seemingly stark discrepancy”. Mr Newman’s explanation was that his visit to his GP on 23 January followed a further serious attack on the previous day, 22 January, like that from which he had suffered on 6 January (para 42 above). But by 28 January he had recovered. He said – “I visited the doctor on this occasion after another of these really severe bouts of dizziness that I experience, which made me completely incapacitated for a number of hours. And…following those I am left in the condition exactly as described there…within a few days after this I had recovered my, what I now regard as my normal condition.”

[52]The judge rejected this evidence. He pointed out that there was no reference to such a further attack in the GP’s notes for 23 January; nor was it mentioned to Dr Rose or Dr Plant, whom Mr Newman revisited in February (see immediately below); nor was it mentioned in Mr Newman’s first witness statement dated 14 February 2003. By contrast, there was a GP record of a second serious attack on 25 June 2003 (“bad attack in January, then awoke last night 01.30 with spinning and extreme nausea…”). The judge said that Mr Newman gave the impression, on this subject of the contrast between the video and the GP note of 23 January 2003, of “making up his evidence on the hoof”. However, in his overall consideration of the video, the judge did not draw the conclusion that Mr Newman was fabricating his symptoms, but only that his complaints to his GP, and therefore to all the medical experts, “must be treated with caution” (at para 14) and thus “undermined his credibility” (at para 67).

[53]In February 2003 Mr Newman revisited his own experts, but their reports do not really carry matters any further. On the diplopia, Dr Plant stated that it was “geometrically quite predictable and the location of the images does not vary”: the “consistent account” given by Mr Newman was what led him to think that it was organically based. He did not think that the visual symptoms would improve, but he would expect Mr Newman to adapt and to be able to do more in the way of reading etc.

[54]On 13 June 2003 Mr Newman was examined by Professor Linda Luxon, consultant physician in audiological medicine. In her report dated 3 July, and supplementary letter dated 29 July 2003, she concluded that there was nothing wrong with his vestibular function. She commented that dizziness and light headedness are commonly associated with a number of psychological disorders. She said that Mr Newman did not volunteer tinnitus as a current symptom, although when directly asked said that his hearing was normal save for constant tinnitus since the accident.

[55]I have already referred to Mr Newman’s second serious attack of 25 June 2003, recorded in his GP’s notes of that day.

Joint reports

[56]Three joint reports were drawn up in preparation for the trial. They are nominally dated in August 2003, although variously signed and dated in September and October 2003. The three reports are(1) by Dr Plant and Dr Kennedy;

(2) by Dr Plant and Ms Tomlin; and

(3) by Dr Rose and Dr Jacobson.

[57](1) Dr Plant and Dr Kennedy agreed that Mr Newman had suffered a whiplash injury in the accident which had caused headaches, dizziness and fatigue persisting up to the present; that this was longer than would be expected; that “psychological factors” had been instrumental in the persistence of these symptoms; that any head injury was minor, and that any such mechanism was either minor or to be discounted. As for the diplopia, they stated as follows:

“8. Mr Newman complains of monocular diplopia and for brief periods to Dr Plant of binocular diplopia in the absence of monocular diplopia. We accept that the onset of this was following the index injury. We agree that the symptom is not due to any objectively identifiable abnormality in the eye or brain. 9. Dr Plant feels that the symptom of monocular diplopia, whilst he cannot explain it, is real to Mr Newman and debilitating and in particular would make it difficult to read for extended periods. Dr Kennedy, however, notes that the patient feels that such a symptom does not preclude him from meeting the driving regulations. 10. Dr Plant has provided a reference for a case of monocular diplopia provoked by a head injury. What evidence there is indicates that that injury was more severe but, as in this case, it was not possible to identify any causative underlying structural damage to the brain. Dr Kennedy is of the view that that case was accompanied by other features, which clearly indicated organic brain symptomatology not seen in the Claimant.”

[58](2) Dr Plant and Ms Tomlin agreed that Mr Newman has the “subjective complaint” of monocular diplopia; that there is no ocular cause for it; that his ocular movements and muscle balance are within normal limits; that he has excellent uncorrected visual acuity in each eye for distance, and that the subjective complaint has not impaired his stereopsis. On consistency of description, there followed this passage:

“7. We are in agreement that the subjective diplopia is variable from the differing accounts given by Mr Newman to the two of us at different times (vide Dr Plant first report and Ms Tomlin report dated 1.03.03). The effect of head rotation reported by Mr Newman also varies in that at times he reports that the two images fuse and at other times he reports that the images become vertically aligned but at increased separation. 8. We are in agreement that we cannot offer a physical (pathophysiological) explanation of the subjective complaint of monocular diplopia. 9. It is Dr Plant’s view that the inconsistencies in his description and the lack of any interference with stereopsis (where the images from the two eyes are fused to a single perceived image) makes it unlikely that the subjective symptom is due to a ‘hard-wired’ disruption in visual processing, except at a ‘higher’ level. It is Ms Tomlin’s view that the high quality of Mr Newman’s stereopsis reflects the high quality of his vision. 10. We therefore agree that it is unlikely that any causative damage to the eye or brain could be identified. However, we do agree that he reports that these symptoms are real to him.”

Dr Plant went on, however, to maintain the view that “minor localised brain damage caused by the index accident could be responsible for his symptoms”.

[59](3) Dr Rose and Dr Jacobson agreed on little.

Trial

[60]The trial began on 3 and continued on 4 November 2003. Mr Newman was still in the course of being cross-examined at the luncheon adjournment on the second day. He had been feeling unwell that morning, as the judge had observed for himself. It was decided to adjourn the rest of his evidence and take other witnesses that afternoon. Unfortunately, the trial was not resumed for some 18 months, until 21 June 2005.

[61]The experts giving oral evidence for Mr Newman were Drs Plant, Rose and Baker. The experts giving evidence for the defence were Drs Kennedy and Jacobson and Ms Tomlin. Mr and Mrs Salmon and Mr Newman’s son, Andrew, also gave evidence for him.

[62]In his written outline opening, Mr Foskett pointed out that the extent to which Mr Newman’s credibility was seriously being questioned was unclear. However, he submitted that Dr Kennedy and Ms Tomlin had agreed in finding BMD and that no one had suggested that the symptoms of it were not real. The case made was that whereas all Mr Newman’s symptoms were due to a head injury and brain damage, there was a downward psychological spiral from early 2000. This prolonged the other symptoms: cognitive therapy might help with them, without eradicating them, but it could make no impact on the BMD which would last for the rest of his life. Thus, the primary case for long term loss of earnings and the costs of care was directed at the BMD.

[63]Mr Watt-Pringle for his part, in his opening skeleton argument, accepted whiplash and a possible minor head injury. The BMD was identified as the most serious of the symptoms complained of, but no organic or physical cause for it had been identified. It therefore had to be doubted whether any causative link with the accident could be proved. There was no open attack on Mr Newman’s honesty as a whole, but it was said that it would be necessary to explore with him the symptoms of which he complained, in particular in the light of the inconsistent accounts of the BMD referred to in the joint report of Dr Plant and Ms Tomlin, and in the light of the video, as well as Dr Jacobson’s reference to a sick role and to exaggeration. The extent of the losses claimed were put under sustained criticism.

[64]Mr Newman. Mr Newman gave evidence over several days during both November 2003 and June 2005. He was not challenged in an overall way to the effect that he was making up his symptoms, such as, in particular, those of BMD. But he was firmly and directly challenged here and there with not telling the truth, for instance by reference to the video (“Q. Mr Newman, I suggest to you that you are not nearly as incapacitated as you make out? A. That is not so.”), or the GP’s note of 23 January 2003 (“Q. What you told your doctor on the 23rd of January is simply not true, is it? A. It was absolutely true on that day that I saw him.”), or Mr Newman’s explanation of that note as reflecting a further severe attack on 22 January (“There’s a simple explanation for that, is there not, Mr Newman? The second attack never happened. A. That is absolutely not true.”).

[65]Dr Plant. As for the expert witnesses, an important development occurred in the case of Dr Plant. In his written reports he had expressed the view that the BMD had an organic cause, even if he could not explain or identify it. In his oral evidence he continued to express the view that it was possible to suffer from monocular diplopia from organic causes even if they could not be identified, citing his own clinical experience, while accepting that such cases were very rare. He said that the vast majority of BMD cases had an organic cause. However, under cross-examination, he went far to accept that Mr Newman’s BMD may not have had an organic cause. He conceded that Mr Newman had probably not sustained a neurological head injury (and if any only a minor one) and also accepted that a case study which he had cited did not contain sufficient information to support his diagnosis and also led from “a violent blow to the head”. He was challenged with an extract from Walsh and Hoyt’s Clinical Neurological Ophthalmology, which Dr Kennedy had cited, to the effect that true monocular diplopia, in the absence of an identifiable disorder, is caused by stress and usually resolves within a short period when the patient is reassured of the benign nature of the condition. He went far to accept that, but said that in his personal experience the condition could be persistent, and that this applied in Mr Newman’s case. He also accepted that Mr Newman’s visual function, as measured by standard measures, was “within the category of being able to do anything. He does not have a measurable defect of vision which would prevent him from using a computer or reading a book”.

[66]In particular, Dr Plant was also questioned about the importance, for the purpose of diagnosing BMD, of consistency of description. He accepted that the basis of his original diagnosis had been a clear and consistent description given to him by Mr Newman; but also that, on his re-examining all the evidence, there had been inconsistency both in the description to him, and also further inconsistencies between the descriptions given to him and to Ms Tomlin. He accepted that such inconsistencies were “significant”, and that “It weakens the argument…It does weaken the argument”.

[67]Looking back at Dr Plant’s two joint reports with the hindsight of his ultimate evidence at trial, it seems to me that it is possible to detect a shift in his views to the possible acceptance that Mr Newman’s symptoms were psychological or functional, or what is there called a subjective complaint, rather than organic, albeit they are there described as “real” to Mr Newman. Be that as it may, at trial Dr Plant maintained his original diagnosis that Mr Newman was suffering from organic BMD, while having the gravest difficulties in explaining it. But he believed that he was agreeing, in his joint reports, with both Dr Kennedy and Ms Tomlin, that Mr Newman had BMD.

[68]Dr Rose. Dr Rose, it will be recalled, had said in his reports that Mr Newman had suffered diffuse organic brain damage. Under cross-examination, however, he accepted that there was an element of psychological reaction in Mr Newman’s symptoms, albeit having its basis in a change in neurochemistry. He also conceded that in his reports he might have underplayed the levels of Mr Newman’s anxiety. He said that there was no well defined difference between organic and psychological damage. When pressed with the evidence of the neurologists (Drs Plant and Kennedy) that organic brain damage was not demonstrated, he said:

“I apparently disagree with the neurologists on organic brain damage. It comes to that! I disagree that my position is untenable. I’ve worked in the field a long time…I regard psychiatric illness as organic brain damage or at least dysfunction although others wouldn’t…I think that my views are probably out of the main stream but the more we learn of mental illness the more we realise there is a dysfunctional brain underlying it.”

[69]As to consistency of reporting symptoms, he did not think it was an important factor in assessing long standing complaints. His yardstick was whether he believed the patient.

[70]Dr Baker. Dr Baker now accepted, departing from his reports, that there was no evidence (the absence of post traumatic amnesia, the Glasgow Coma score of 15/15) of even mild head injury or brain damage. But Mr Newman had concussional symptoms secondary to whiplash or banging his head on the headrest. In any event, his view remained that psychological factors were the primary mechanism for Mr Newman’s symptomatology. He said:

“If an illness goes on longer than you expect, you get depressed and that is the sort of process I’m talking about rather than damage to the brain or nervous system of which there’s no evidence.”

However, in this connection he went out of his way to distinguish between BMD and the symptoms of a post concussional syndrome. On being referred to his report, he said:

“I think in the next paragraph I deliberately excluded comments on his complaint of binocular diplopia” (sic, in fact monocular diplopia, see para 6.2 of his report). The cross-examination continued: “Q. I understand that. But leaving monocular diplopia aside…A. My view then and now is that psychological factors were the primary mechanism for his symptomology, other than his [monocular] diplopia.”

He accepted as accurate what he had been told by Mr Newman. On that basis he considered that Mr Newman’s true abilities were “slightly reduced” from his pre-accident ability.

[71]Professor Luxon. Professor Luxon’s evidence was agreed (see at para 54 above), so that there was no need for her to give oral evidence. Mr Newman did not suffer from any vestibular dysfunction.

[72]Dr Kennedy. He confirmed his reported view that there was no organic brain damage. In cross-examination, however, he was pressed to accept that he had nevertheless acknowledged, for instance in his original report, that Mr Newman had BMD (“I confirmed bilateral monocular double vision”). He explained – “I was satisfied on the basis of my examination that the patient told me that he had bilateral monocular diplopia which did not match up with symptoms that he offered me. This is not uncommon in medicine…I had dismissed them as being of no organic basis and that is all I can do as a neurologist.”

[73]And then, a little later, in response to the judge’s questions:

“He says he has it and I cannot prove whether that is correct or incorrect. But the body of the neurological literature is that it has no organic basis…I accept that the patient said that he had it on the physical examination and apart from saying that it has no organic basis but that it has certain psychological, if you want, implications. I can’t say more than that.”

[74]Mr Foskett, nevertheless, decided to press the issue. There followed this extract:

“Q. But do these things just arise spontaneously? A. I didn’t say they arise spontaneously, I said they arose following the accident but there are various possibilities as to why that might be…Well he could have totally fabricated the symptoms, for instance…That’s one possibility. Q. Would you forgive me. That is a pretty tall order, is it not, to fabricate these kind of complex symptoms? A. I can’t make a judgment but it’s a possibility…Yes. Sir, it happens. This could certainly be such a case… JUDGE BURSELL: Mr Foskett, it seems to me it is a clear possibility. The likelihood is that it is a matter for me, is it not?... A. I was asked and felt obliged to list it, my Lord. MR FOSKETT: I see. You do not personally subscribe to it then so we can leave it to one side. A. I don’t say I subscribe… JUDGE BURSELL: Well are you asking him? MR FOSKETT: Well if we have to go down that road. If you are going to say that it is all fabricated then you are going to say it. A. Am I allowed to discuss the examination of Professor Luxon or the video evidence? Q. Forgive me, doctor, but how does that have any impact at all upon your appraisal of this gentleman’s eye complaints? A. I see him in the totality. MR FOSKETT. Well that, I think, is a matter for the court…It is your position now, is it, that this gentleman is and has been fabricating the symptoms of monocular diplopia? A. In the light of evidence that has subsequently come to my attention over the ensuing years (pause) I have reservations about the patient’s veracity in recording symptoms. Q. So was the answer to my question yes, I think this man is fabricating his symptoms? A. On the balance of probabilities at this stage, yes.”

A. I don’t say I subscribe… A. Am I allowed to discuss the examination of Professor Luxon or the video evidence? A. On the balance of probabilities at this stage, yes.”

A. Am I allowed to discuss the examination of Professor Luxon or the video evidence?

[75]A little later:

“Q. Well do you want to venture some other possibility since I have invited you? A. No, I simply wish to stick with my reports but I will venture further possibilities or further discussion if I’m allowed to discuss the video evidence and Professor Luxon’s physical examination… Q. I see. They are either genuine or he is faking it? A. They are either genuine or they are being faked, but they are not due to brain disease.”

Q. I see. They are either genuine or he is faking it?

[76]On the question of consistency, there was the following passage in re-examination:

“Q…Do you agree with Dr Plant that consistency and clarity of reporting is relevant? A. Yes, it’s important, very important. Q…So I ask you, in your view, has there been consistency and clarity? A. No. Indeed I might say that that was the problem when the patient came to see me. As I have already said there was a mismatch between what he declared to be the symptoms and what I might have expected in the light of the examination. At the time it did not seem so important as it has clearly become during the evolution of the medical data.”

Q…So I ask you, in your view, has there been consistency and clarity?

[77]Dr Jacobson. It will be recalled that Dr Jacobson had diagnosed a mild post concussional syndrome, which had been perpetuated on the basis of entering into a sick role. In his evidence at trial he accepted that there are a large number of people with mild head injuries who suffer long term sequelae, but he thought that in any event Mr Newman’s syndrome had ended by about 30 August 2000. This was on the basis that the great majority of sufferers (on one statistic put to him, 79%) were free of it after a year, coupled with noting that Dr Tarafder’s letter of that date (see para 25 above) said nothing about any continuing mood disturbance, which he, Dr Jacobson, would have associated with an on-going syndrome, while reporting Mr Newman as saying that his symptoms were getting worse. He put that down to the onset of a sick role. He explained that sick role as being neither a psychiatric nor a psychological condition, but a discrete matter capable of complicating any illness, which could be imposed from outside or could arise out of someone’s own personality. He did not think that Mr Newman required a buddy or enabler. As for BMD, he said, while deferring to Drs Grant and Kennedy, that he had never come across it after head injury, nor as a symptom of post concussional syndrome. In that context he said that consistency in reporting symptoms of visual disturbances was “very important” in assessing such complaints. He also described the test of consistency as the “one word” summary for assessing a complaint of symptoms for which there was no objective test. But even in answer to more general questions in cross-examination about Mr Newman’s symptoms he said in effect that consistency was a critical test:

“Q. If the view was taken that some degree of exaggeration or over-statement of symptoms had occurred, then I would suggest to you that this is one of those cases where it is subconscious rather than conscious? A. That depends on the frequency and severity of the inconsistency, which it could be subconscious, it could be conscious, it could be mixes of the two. It all depends on his Lordship’s judgment of how great is the inconsistency.”

[78]Ms Tomlin. As Ms Tomlin explained, although her tests did not conclusively negate a diagnosis of BMD, they provided no support for it. On the contrary, they showed that Mr Newman was a man with normal, if not acute, visual capacity. Three separate tests (measuring stereopsis, fusion and superimposition) showed that he was able to use his binocular vision “incredibly well”. His stereovision was up to the level demanded of the RAF or CAA. Despite what Mr Newman said about his problems with stereopsis, it was hard to imagine such problems in the light of the tests. He had “one of the finest measures of stereopsis you can record”. Such tests did at least show positively that he was not handicapped in his near vision. He had said that he saw stars singly (cf what he had told his GP as cited in para 20 above), something which Mr Newman in his evidence denied, but about which Ms Tomlin was sure – and she was able to point to her notes, which recorded “stars OK” – especially as she had never before come across someone who complained of double vision being worse at 200 yards than near but had normal vision at the furthest possible distance. She was struck by the fact that, during the tests, he had used technical language in saying “My stereovision is gone”, when all her other patients would have said something like “Ah it is double, it has jumped to two”.

The respective cases at trial

[79]Two issues raised at this appeal make it necessary to consider how the parties’ respective cases were put at trial. On the one hand Mr Foskett complains that it was unfair of the judge to reject BMD (if he did) on the basis that Mr Newman was fabricating his symptoms, submitting that there was no such defence plainly put or made at trial. On the other hand, Mr Watt-Pringle submits that BMD was alleged separately from the post concussional syndrome, and that the judge was entitled to reject it, or find it not proven, in the absence of any objective evidence of it.

[80]As for the matter of fabrication, Mr Foskett is able to point out that it does not in terms figure in the pleaded defence, and that there was no general challenge of wholesale fabrication of Mr Newman’s symptoms, or of his BMD symptoms, either to him or to his experts or other witnesses, at trial. Mr Foskett can also say(a) that there is no sign in the joint expert reports of any attack on the credibility of Mr Newman, especially in relation to BMD, and

(b) that at various stages in the trial, both in his written submissions, and during the taking of evidence, he sought to draw out the defence on its attitude to the question of fabrication, without much success. On the other hand, in his original report Dr Jacobson had raised a question of conscious exaggeration and had concluded that Mr Newman was not reliable (see paras 45/46 above); Mr Watt-Pringle’s opening skeleton argument had highlighted certain areas of credibility which it would be necessary to raise with Mr Newman (see para 63 above); Mr Newman had certainly been challenged with not telling the truth inter alia in relation to the video and his associated evidence (see para 64 above); and Mr Foskett had himself cross-examined Dr Kennedy on the subject of fabrication and had received answers that he would not have wanted to hear (see at paras 74/75 above).

[81]In my judgment, there was no need of any blanket allegation of fraud, fakery or fabrication in the pleaded defence: see Kearsley v. Klarfeld

[2005] EWCA Civ 1510

(unreported, 6 December 2005), especially at paras 45 and 47/49 (an authority very fairly provided to us by Mr Foskett following the hearing). The defence and its counter schedule of damages, together with the expert reports served pursuant to the defence, and the video provided for trial, sufficiently put in issue the defendant’s lack of acceptance that Mr Newman had suffered the injuries and sequelae of which he complained, including in particular BMD (see, for instance para 2 of the counter-schedule). In truth there was no wholesale attack of fabrication, no general attack on Mr Newman’s honesty, at trial, as the defendant’s written closing submissions demonstrate. Instead, there was, as must occur at the close of many a trial, a detailed submission by reference to specific points which had arisen in the evidence as to why the judge should regard Mr Newman’s credibility as being both at the heart of his claim and as being suspect. The submission divided its fire between specific allegations of falsehood, exaggeration, and inconsistency, to be balanced, it was said, against the lack of objective verification of the symptoms relied on.

[82]In these circumstances, I will consider below whether the judge, who certainly did not expressly reject Mr Newman’s evidence as being that of a fraudster, is to be regarded as committing the error, for which Mr Foskett contends, of an unexpressed sub silentio finding of fabrication.

[83]As for the essential structure of Mr Foskett’s case, it is right that I draw attention to a special feature of the litigation which has extended into this appeal. In theory, it might (I stress the word “might”) have been possible to advance the BMD claim as part and parcel of the post concussional syndrome, alleging that, like the other features of that syndrome, such as headaches, dizziness, nausea, unsteadiness and so forth, its duration had extended itself, because of psychological factors, beyond the time for its normal cure. There would, however, have been problems with such a claim. In the first place, the essential plank of the BMD claim had always been that it had its own cause in an organic brain or ocular injury, even if that could ultimately not be demonstrated. Secondly, the experts treated BMD and the post concussional syndrome separately: Dr Plant did in his first report (see at para 29 above); as did Dr Baker (see above at paras 33 and 70); moreover Dr Jacobson said that he had never come across BMD as part of post concussional syndrome (see above at para 77). There was no expert evidence that put BMD and the post concussional syndrome into the same compartment (unless possibly Dr Rose, who was out on a limb in positing a more significant head injury). Thirdly, for tactical reasons, Mr Foskett was interested in an organic BMD, so that he could submit that, whatever the prognosis for the post concussional syndrome, Mr Newman was stuck with BMD for the rest of his life. Fourthly, Mr Foskett has at this appeal himself confirmed that BMD and post concussional syndrome were treated essentially separately at trial (while accepting that a feature such as credibility could raise concerns across the divide).

[84]On this appeal, Mr Foskett has again addressed us separately on BMD and post concussional syndrome, even if there were elements in his submissions here and there (as there might have been at trial as well) which could with hindsight be taken as eliding the two sets of symptoms: such as, for instance, the important consequences in terms of quantum of damages.

The judgment

[85]Seeing that part of Mr Foskett’s appeal involves submissions that the judge’s reasons were inadequate, that he rejected the case of BMD on an implicit case of fabrication without expressing it, that he was not entitled to reject BMD on the burden of proof, and that his findings were otherwise not capable of being supported on the evidence, I will need to set out his judgment with some care.

[86]The judgment runs to 79 (double spaced) pages. Paras 1/8 describe the accident, its immediate consequences and Mr Newman’s complaints, either to his GP, or on email to Mr Colyer, down to March 2000.

[87]Then, in a lengthy passage at paras 9/24 the judge turned to the question of Mr Newman’s credibility and consistency. This was by reference to a similar lengthy passage in Mr Watt-Pringle’s closing written (and oral) submissions (to which Mr Foskett had an opportunity of replying in detail) in which, as I have stated above, the former set out the defence case as to Mr Newman’s credibility. The judge approached this passage of his judgment in a most careful way. He started by stating that the emails to Mr Colyer were “clearly of importance”. He found in favour of, or not against, Mr Newman in respect of quite a number, if not the majority, of Mr Watt-Pringle’s points: see at paras 10, 17, 18/19, 20, 21, 22, and 24. Nevertheless, in certain specific respects the judge acknowledged the force of the defence submission made to him. Thus he found that Mr Newman had misrepresented (“more distortion than lie”) a comment in an email to Mr Colyer about having to represent himself in court in another unrelated action and had been “less than truthful” in trying to pretend to the judge that he was unaware of the distinction between giving evidence and representing himself.

[88]Most importantly, or as the judge himself commented “Of far greater significance”, was the question of the video taken on 28 January 2003, the same day as Mr Newman was in London to visit Ms Tomlin and Dr Jacobson. The judge contrasted what was to be seen on the video with Mr Newman’s own description of his condition in his complaint to his GP on 23 January, only 5 days earlier (see paras 42/44 and 49/52 above).

[89]Mr Foskett criticises the judge’s treatment of this episode because the judge erroneously twice cited a GP entry really of 30 June 2003 as referring to 10 January 2003. The entry reads:

“not going out and losing confidence”

. The judge said that the 23 January entry “sits well with that of the 10th January”. The entry of 23 January read – “No better…living downstairs, not going out, cannot walk 25 yards as unsteady and has lost confidence to do so…”. In my judgment, however, the judge’s error is wholly immaterial. Mr Newman sought to explain the 23 January entry in the light of the video on the ground that, while that entry was “absolutely true”, his condition that day reflected a second serious dizziness attack on the day before, 22 January (his first attack had been on 6 January), whereas by 28 January he had recovered, he said, to his “normal” condition, hence what could be seen on the video. However, quite irrespective of the judge’s erroneous reference to the “10 January” entry, which is neither here nor there, Mr Newman’s evidence made no sense at all for a number of reasons: (1) there was no GP entry for a second attack on 22 January, nor any other evidence to support that suggestion, such as in Mr Newman’s witness statements; (2) the attack suffered on 6 January was still, according to the GP entries, affecting Mr Newman severely on 23 January, even though his blood pressure had returned to normal by 10 January; (3) on 9 January, when his blood pressure was almost back to normal, Mr Newman wrote to his GP: “I remain very unstable and still have the dizziness” (see para 42 above, an entry the judge did not refer to but might just as well have done); (4) Mr Newman did not seek to say that the 23 January entry appeared worse than he had intended to report, but rather that it was “absolutely true”; (5) that evidence from Mr Newman makes Mr Foskett’s submission below and again on this appeal, namely that the 23 January entry should be read down so as to be understood to be recording Mr Newman saying that he could not walk 25 yards “unless accompanied” (thus explaining Mr Newman’s successful accompanied outing as shown on the video), a quite impossible submission, in no way supported by Mr Newman’s evidence but on the contrary directly contrary to it.

[90]What inference did

the judge draw from this unsatisfactory evidence? He said (at para 14):

“It was my impression, however, whilst the claimant was giving his answers about the further attack in or about the 21st January that he was making up his evidence on the hoof; nonetheless, that may perhaps in part be explained away if he was indeed unwell. I do not accept that I should read such a gloss as Mr Foskett suggests into the GP’s notes…What is more, I find that the manner of the claimant’s walking in London, even though accompanied, is at entire variance with someone who has lost confidence and whose unsteadiness is not improving; in my view this is so, even if Mr Foskett’s submission as to the gloss were to be accepted. It follows that the claimant’s descriptions of his complaints to his GP – and therefore to all the medical experts – must be treated with caution”

(emphasis added).

[91]Mr Foskett pointed to the words which I have emphasised in this citation from the judgment below in order to make the submission that the erroneous placing in this context of the GP entry of 30 June (aka 10 January) rendered the judge’s reasoning seriously flawed: because, he submitted, the emphasised words were a quotation from that entry (which it will be recalled said “not going out and losing confidence”). However, the quotation, or gloss, is just as much from the more important because more contemporaneous entry of 23 January (“…not going out, cannot walk 25 yards as unsteady and has lost confidence to do so”).

[92]In sum, on this part of the judge’s judgment, about which Mr Foskett understandably placed considerable emphasis, the position seems to me to be as follows. There is no appeal from the judge’s view as to what the video showed. The judge’s reasoning for finding his view of the video as incompatible with Mr Newman’s complaint to his GP just 5 days earlier appears to me to be unassailable. The judge’s concern that Mr Newman was not telling him the truth in the witness box was tempered by reminding himself that Mr Newman might have been ill. Nor does the judge draw the inference that Mr Newman is a fabricator. His bottom line is that what Mr Newman says about his symptoms must be treated with caution.

[93]In paras 15/24 the judge went on to consider other individual points on which Mr Watt-Pringle had challenged Mr Newman’s credibility. The judge dealt with each point carefully in turn. In the majority of cases he found the criticism unjustified and said that he put them to one side. In some cases, however, he found that criticism was justified. In one case he found exaggeration, but was unable to say that it was conscious rather than unconscious. On the question about whether Mr Newman had told Ms Tomlin that he saw stars singly, the judge preferred the evidence of Ms Tomlin. In another respect concerning Ms Tomlin, he was prepared to accept a case of misunderstanding, but concluded this passage by saying that it raised “further questions as to the claimant’s reliability as a historian”.

[94]In paras 25/28 the judge considered the role of Mrs Salmon. She had also come in for considerable criticism, but the judge concluded that, dominant and forceful as she might be, her evidence was not intrinsically unreliable.

[95]In a lengthy passage at paras 29/63 the judge proceeded carefully through the written and oral evidence of the expert witnesses. I have made my own summary of that evidence above. As to the basis of that evidence the judge made the following findings or observations. Dr Plant was a specialist in visual disorders. He primarily based his diagnosis on the consistency of Mr Newman’s reported symptoms, accepting that experts and court were dependent on an analysis of the patient’s subjective descriptions of his experience. For Dr Rose, however, consistency in reporting symptoms was not an important factor in assessing long standing complaints: they could vary with how the patient was feeling or with memory difficulties. The basis of his report had been his acceptance of Mr Newman’s symptoms as entirely genuine. Dr Baker agreed that he had been misleading in his report to suggest that there had been a mild head injury “on all conventional criteria”. He had also accepted as accurate what Mr Newman had told him. Turning to the defence experts, in Dr Kennedy’s case the judge referred briefly to his reservations about Mr Newman’s veracity and to his statement that on the balance of probabilities he thought that Mr Newman was fabricating his symptoms. However, the judge went on to quote Dr Kennedy as saying “In my report I haven’t said malingering...The symptoms are either genuine or faked but they are not due to brain disease”. Consistency and clarity were important, and they were lacking. Dr Jacobson’s remarks about consistency were also cited by the judge. Ms Tomlin had at an earlier stage already been described as an impressive witness.

[96]On the question of consistency in relation to BMD, the judge at para 65 considered in turn eight out of a greater number of alleged inconsistencies cited by Mr Watt-Pringle. The judge described the eight as being “more important” than the others. He rejected any finding of inconsistency in three out of the eight instances. Among the inconsistencies which he reviewed at this point was that regarding how Mr Newman saw stars. In addition to the eight instances was the inconsistency, already dealt with earlier in his judgment, regarding the video evidence, which did not go directly to BMD but rather to Mr Newman’s general condition.

[97]The judge then expressed his preferences as to the experts (at paras 67/69). He thought that the inconsistencies he had identified undermined the acceptance by Dr Plant of Mr Newman’s complaint of BMD. He therefore preferred the evidence of Dr Kennedy. He had no hesitation in accepting the evidence of Ms Tomlin, whom he described as a careful and excellent witness. He also preferred the evidence of Dr Jacobson to that of Dr Rose. He said that Dr Jacobson was a very good witness with a measured response to cross-examination, whereas Dr Rose gave the impression of trying too hard to support a particular conclusion without sufficient independence. He preferred the more mainstream views of Dr Jacobson. The evidence of Professor Luxon had been undisputed. He finally considered Dr Baker’s evidence, and concluded that, even though there was no head injury on conventional criteria, nevertheless Mr Newman had been mildly concussed and suffered from a post concussional syndrome. He reached this conclusion expressly despite “the claimant’s inconsistencies in relation to monocular diplopia and the question of his credibility”.So far as those preferences go, Mr Foskett is not really in a position to criticise them, save that in an important submission he queries what there was in Dr Kennedy’s evidence to prefer over and above Dr Plant’s evidence – other than a silent acceptance of Dr Kennedy’s view about Mr Newman as a fabricator, something which Mr Foskett submitted was unjustified both within the structure and context of the litigation and for the very reason that it would be unjustifiable for such a conclusion to be left unexpressed and without persuasive reasoning.

[98]For the rest, the judge’s reasoning can best be described in his own words in the following extracts from his paras 66/70:

“66. On the other side of the balance [ie from that of the inconsistencies discussed in para 65] are the e-mails that the claimant sent to Mr Colyer…I accept that there were some initial difficulties with the claimant’s vision but these early comments to Mr Colyer are, of course, not the same as symptoms being described to medical experts. 67. Monocular diplopia is a rare condition that cannot be verified by objective tests and the inconsistencies that I have found proved are in my view most significant in spite of the e-mails and the concurrent medical notes. I agree with Mr Watt-Pringle’s contention that those inconsistencies do not derive from bad memory, as the claimant was primarily describing current visual problems. Indeed those inconsistencies also undermine the acceptance by Dr Plant’s of the claimant’s complaint. I therefore prefer the evidence of Dr Kennedy. Even if this were not so, those inconsistencies, coupled with my finding as to the video (which undermines his credibility), mean that the claimant has failed to prove his case as to monocular diplopia on a balance of probabilities: see Pickford v. Imperial Chemical Industries…I should perhaps add that I do not accept Mr Foskett’s contention that all the experts with experience of monocular diplopia agree that the claimant suffers from monocular diplopia. For example, in my view Dr Kennedy is not so agreeing in his joint report with Dr Plant, although he does agree that is the claimant’s complaint…Ms Tomlin reports the claimant’s alleged symptoms but does not, in my view, accept it as a diagnosis either in her own report…or in her joint report with Dr Plant… 69…Although I find that the claimant has consciously exaggerated some of his symptoms I do not find that he has done so at all times. I am also entirely satisfied that there is a large psychological element in this case. Against this background I turn to Dr Baker’s evidence [relating to mild concussion, see above]…In spite of the claimant’s inconsistencies in relation to monocular diplopia and the question of his credibility, I accept this general view. Consistent with this and in addition to it I find on a balance of probabilities that the claimant has entered into a sick role as Dr Jacobson has suggested; however, I also find that this is in part conscious. He has entered a safe cocoon which he is loath to leave. Nevertheless, this is the main due to his pre-existing personality and the effects of the accident upon it… 70. In the light of these findings it is necessary that I should set out those complaints that I find to be genuine and also those that I accept to be current. Professor Luxon has shown that there is no evidence of a vestibular cause for the claimant’s symptoms. I also accept her evidence that the perception of tinnitus is more related to psychological factors. As I accept her evidence that this complaint was only elicited on direct questioning, I do not accept that it is unduly obtrusive. I accept that the claimant does occasionally feel nauseous and dizzy and that he may have a feeling of loss of balance…I of course bear in mind that situations change but in the light of the video evidence and on a balance of probabilities I do not accept that this is so debilitating that he should not go out alone. Fortunately the bad panic attacks seem now to have subsided.”

[99]In paras 71/72 the judge returned to the relationship of dependency which had grown up between Mr Newman and Mrs Salmon’s family. He pointed out Mr Newman’s own evidence of his desire to “be brave” and become more independent. For their own reasons, the Salmons could not continue with the current situation of his living with them. So, difficult as it might be, he would have to go back to living on his own.

[100]As for the future,

the judge said this (at paras 73/74):

“73. I have already found that the claimant has entered into a sick role. I accept Dr Jacobson’s evidence that post concussional type syndrome ceased in about August 2000 but that the symptoms thereafter continued (though to an extent exaggerated) due to that sick role…As I do not find that there was a head injury within the conventional meaning of that term as used by the neurologists, I also accept Dr Jacobson’s view that there should now be an improvement of those symptoms. Bearing in mind that it is now ingrained I find that this is likely to take some little time, perhaps two to three years. Although this time will be difficult for the claimant I do not find that a case manager is necessary; however, I find that for a period a buddy/coach/enabler will be necessary…This is because the claimant must be eased out of the sick role that he is presently in and back into independent living. 74. In the light of my findings in relation to monocular diplopia the claimant has failed to prove that he continues to have visual problems…On all these findings [ie including the post concussional syndrome and the sick role] the claimant has failed to prove that he will always be unable to work as an author or, indeed, to work as a draughtsman once he is rehabilitated. After rehabilitation he would be able to lecture if this opportunity were still open to him.”

[101]Finally, in the remainder of his judgment, the judge turned to detailed matters of quantum, in part by reference to the care experts, Ms Russell and Mrs Gough, but also of course by reference to his own primary findings. He found that Mr Newman could recover for past loss of earnings and for future loss of a further two and a half years (approximating his own finding of a recovery over the next two to three years), but that such losses should not include the fruits of authorship, since those would be preserved until after recovery. He found that Mr Newman had failed to prove on the balance of probabilities that he would have earned any money from lecturing. He also found that, since Mr Newman was dedicated to a writing career, he would not have returned to work as a draughtsman other than to keep himself while continuing with his writing. He therefore awarded him past loss of earnings and earnings for a further two and a half years, at a rate of £16,500 per annum, said to be the modern equivalent to earnings which Mr Newman had obtained as a draughtsman in the 1990s. That amounted to £99,000 and £41,250 respectively. As for general damages, he took account of all that he had found Mr Newman to have suffered over the years and awarded £25,000. As for past care, he awarded him £19,437.40. As for future care, he awarded £10,000. This included a buddy/enabler at a reducing hourly term over the ensuing two and a half years. The total amounted to £192,687.40.

Mr Foskett’s submissions

[102]Mr Foskett’s primary complaint is that the judge failed to find that Mr Newman was suffering from BMD, coupled with the submission that the judge had wrongly disposed of the issue on a mere burden of proof. Many separate submissions coalesced in this complaint, of which the dominant themes were as follows. The judge had no good reason to doubt the genuineness of Mr Newman’s account of his double vision. It had begun soon after his accident and was therefore inferentially caused by it. Mr Newman’s early reports of it to both his GP and to Mr Colyer, before any litigation could have been on the horizon, were cogent proof of the disability. The judge was wrong to dismiss the emails to Mr Colyer as of less value than his accounts to doctors: in their own way they were of greater forensic force. Consistency had been wrongly elevated into the critical test. It was not, and the witnesses had not said it was. In particular, the judge was wrong to say that Dr Kennedy had said that it was the “only” test (at para 64). Neither he nor anyone else had said that. Dr Kennedy had merely said that it was “very important” (at para 76 above). In any event, a distinction had to be made between precise consistency and essential consistency. If Mr Newman’s accounts to the doctors had differed at different times, that could reflect his experience or his own fallibility or misunderstanding or misrecollection, as Dr Rose pointed out. Of more importance was the essential consistency with which for so many years Mr Newman had been complaining of double vision.

[103]If therefore Mr Newman was honest, his account had to be accepted. Indeed, right down to trial his account had been accepted, that is to say that the defence’s experts had agreed with Mr Newman’s experts that he was suffering from BMD, that his complaint, even if subjective, was real to him: see in particular the joint reports of Dr Plant and Dr Kennedy and of Dr Plant and Ms Tomlin (at paras 57/58 above). In this connection the judge had not found that Mr Newman was dishonest, or was a fabricator. Indeed, there had been no defence attack on his essential honesty or integrity. Even in rejecting the case of BMD, for instance in the critical para 67 of his judgment, the judge had not said that Mr Newman was a fabricator. There was a danger, however, that the judge might have thought, without saying it, that Mr Newman was. What else did the judge mean by saying that he “prefer[red] the evidence of Dr Kennedy”? If so, that would have been gravely unfair, in litigation where such a defence had never been raised or put, and in a judgment where such a finding had never been articulated or reasoned.

[104]In this connection, the video evidence took the case no further. The video did not bear on the complaint of BMD. In any event, Mr Newman had satisfied Dr Jacobson that very day of the genuineness of his symptoms. And the judge had been wrong to dismiss Mr Newman’s explanation of the GP entry of 23 January, or the submission that it should have been understood subject to the interpolation “unless accompanied”.

[105]Similarly, the judge had not explained what he meant by speaking of Mr Newman’s conscious exaggeration of some of his symptoms (at para 69 of the judgment). What symptoms? Mr Newman was entitled to know.

[106]As for the difficulty in showing that the BMD had an organic component, that was not necessarily the end of the case. Dr Plant had been prepared to infer it, and the judge’s finding of a post concussional syndrome was tantamount to a finding that there had been some, however minor, head injury. In any event, even if the BMD was not organically based, but was entirely non-organic or functional or psychologically derived, that was after all the judge’s conclusion about the extended duration of the symptoms of the post concussional syndrome.

[107]As for that, the judge had had no reason to accept Dr Jacobson’s view that the syndrome had ended by about August 2000. Patently it had not. Long term sufferers from minor causes were well recognised. The syndrome had not ended by the time of trial, and therefore the prognosis was that it was now so well entrenched as to be likely to be permanent. In any event, the judge had no evidential basis on which to find that Mr Newman would have recovered in two to three years. Therefore Mr Newman should have been compensated on a permanent basis.

[108]In truth the judge’s judgment had been so inadequately reasoned, as on this ground alone to require an appeal.

[109]If on these grounds this court was in favour of Mr Newman’s appeal, a retrial would be in order, but for the sake of Mr Newman and efficiency we were urged to make our own amended findings of the applicable damages. It was accepted that BMD would not increase care costs over and above the findings of the judge, but those costs should be extended over the rest of Mr Newman’s life. There should also be an uplift in general damages to take account of BMD. For the rest, the judge’s real error was in allowing nothing for loss of writing or lecturing income. The judge was wrong to regard those losses as merely postponed: in effect Mr Newman had lost, even on the judge’s view nine years, and on Mr Newman’s case a lifetime, of such earnings. Even if the judge had formed the view that such earnings would not, on the balance of probability, have been made, and as to that he only made such a finding in the case of the lecturing income, he ought to have considered the position on the basis of loss of a chance.

[110]I shall deal with these protean submissions by topic headings.

[111]The critical difficulty with Mr Newman’s case on BMD, in my judgment, was that it was advanced, even at trial, on an organic basis. Dr Plant’s original case was that the BMD was organic in origin. He thought that disturbance of the vestibular function would itself indicate a parallel organic defect, but there was no such vestibular disturbance. Nor was there any evidence of an ocular deficit or defect or of any brain injury. Dr Plant accepted that at trial. Dr Rose’s case of a diffuse organic brain injury was still advanced at trial, but it was undermined by all the other available evidence, including that of Dr Plant himself. In any event, the judge was not impressed by Dr Rose’s independence, and he accepted that his views were out of the mainstream. Dr Plant therefore had to accept that there was no identifiable evidence in support of his theory, but he still said that the subjective symptoms of BMD could be caused organically. He accepted in that connection that consistency of description of the symptoms was the basis of his diagnosis, and when he came to realise and acknowledge that Mr Newman’s accounts had lacked such consistency, to a significant degree, he also accepted that his diagnosis had been weakened. Moreover, although Ms Tomlin’s evidence could not prove conclusively that Mr Newman was not suffering from BMD, her tests went far to make it unlikely. Dr Kennedy was a sceptic.

[112]In these circumstances, everything depended on Mr Newman’s credibility. However, quite apart from the significant inconsistencies in his account, which the judge carefully considered, his credibility was undermined by the video, even though it did not relate directly to the question of BMD, as well as by other episodes which again the judge carefully considered. The judge found that he was liable to exaggerate the accounts of his symptoms, and that to some extent this exaggeration was conscious, even if much of it was subconscious.

[113]What parts of Mr Newman’s accounts were consciously exaggerated? It may not matter, but one example is his report to his GP on 23 January 2003. If the judge rejected Mr Newman’s evidence in explanation about the report of 23 January, and if it was incompatible with the video, the judge was entitled to conclude that it had been consciously exaggerated. The judge also expressly found that Mr Newman’s entry into a sick role was in part conscious (at para 69). Although these matters were specifically relevant to post concussional syndrome rather than BMD, the judge was entitled to regard Mr Newman’s credibility in the round.

[114]It is true that Mr Newman’s emails to Mr Colyer were in his favour, and the judge accepted their importance and gave them special consideration. However, he was entitled to say that they do not bear the same weight as symptoms being described (inconsistently, as we must add) to medical experts.

[115]There were other factors which were relevant as well. BMD was a very rare disease, and the only other example of it as an organically based disease which Dr Plant was able to point to as similar turned out not to be valid. Moreover, there was evidence, which Dr Kennedy advanced by reference to a leading text-book, that, in the absence of an organic basis, BMD was nearly always what might be described as a “functional” or psychological, short term stress related illness. Yet, Mr Newman’s case was not that his BMD was psychologically caused, but that it was organic. As such, his case was about an illness which was not only in itself very rare but for which no other example could be shown to exist.

[116]On appeal, and perhaps to a certain extent at trial itself, there may have been some uncertainty as to the basis, organic or non-organic, on which Mr Foskett was advancing Mr Newman’s case as to his BMD. However, in truth the case made was that it had an organic, even if unidentifiable, basis. Mr Foskett accepted that the BMD case had been run essentially separately from the case on post concussional syndrome (see at para 83 above). Moreover there were tactical difficulties in advancing the BMD only as part of the syndrome (ibid). Such a case would also have been susceptible to the attack that a symptom which was experienced as early as October 1999, within a few weeks of the accident, could not really be said to be a psychological symptom.

[117]Mr Foskett submitted again on appeal, as he had done at trial, that Dr Kennedy and Ms Tomlin should have been understood as accepting a real case of BMD in their joint reports with Dr Plant. However, in my judgment the judge was right to say (at para 67) that that was not so. It will be seen that Dr Kennedy’s acceptance of anything is very limited (see under para 57 above), whereas Ms Tomlin speaks of nothing more than “subjective diplopia” or of a “subjective complaint of monocular diplopia” for which no physical explanation can be given and which is accompanied by “the high quality of his vision”. At most, “he reports that these symptoms are real to him” (see under para 58 above).

Consistency

[118]Mr Foskett submitted that the judge overplayed the importance of consistency. I do not agree. It is true that Dr Kennedy did not in terms say that the “only” way to test the complaint of BMD was by reference to consistency, but that, as it seems to me was the essential burden of all the medical experts. Of course, the role of the judge is a more extensive one: he has to take account of and weigh all the relevant evidence. It is for him, at the end of the day, to assess the credibility of the witnesses of fact, and the helpfulness of the expert evidence, and to give due weight to all the possibly conflicting indicia. In medical terms, however, the experts were each (save for Dr Rose) in their slightly different ways emphasising that where ex hypothesi there was no indication whatsoever of any organic basis for the disease the essential diagnostic tool is that of consistency of the complainant’s account. I have referred above to all the witnesses’ evidence about the subject of consistency (especially at para 95). Dr Plant in particular made it clear that the basis of his diagnosis had been his belief in Mr Newman’s consistency. Indeed, the test of consistency is all the more important to the medical expert because he or she starts naturally and professionally from the viewpoint that he or she accepts what the patient says: whereas it is only the judge who is in the position to hear all the witnesses, and especially the complainant, cross-examined on their evidence and to look at the problem in the round.

[119]Moreover, the judge reminded himself (at para 64) that some variability in account would be inevitable depending on how a patient feels on any day. He was also entitled to say (at para 67) that inconsistencies did not derive from bad memory, as Mr Newman was primarily describing current visual problems.

[120]I therefore reject this aspect of Mr Foskett’s submissions.

Fabrication

[121]A major area of concern raised by Mr Foskett’s submissions is whether the judge had unfairly and sub silentio rejected Mr Newman’s case on BMD because he regarded him as a faker or fabricator of his symptoms.

[122]In this connection I refer to what I have said on this subject under the heading of “The respective cases at trial” (at paras 79/84 above). In my judgment, when account is taken of what I have said there and of the judge’s judgment as a whole, it is plain both that there was no general case of fabrication and that the judge did not silently accept one. On the contrary, the judge considered individually and carefully all submissions relating to Mr Newman’s credibility, and came to nuanced conclusions. If in these circumstances he had considered Mr Newman to be a fabricator, then he would have said so. It would also have been most unlikely, on that hypothesis, that the judge would have accepted his case on post concussional syndrome extending up to trial. It would have been totally irrelevant for him to have said that Mr Newman had failed to meet the burden of proof with regard to BMD.

[123]As for Dr Kennedy’s evidence, it was for Mr Foskett to judge how to cross-examine him. Dr Kennedy, although pressed into giving his own opinion, fairly said (as did Dr Jacobson as well) that these questions were for the judge. Mr Foskett nevertheless asks: what did the judge mean when he said (at para 67) that, because of inconsistencies, he preferred the evidence of Dr Kennedy? He suggested the judge was adopting Dr Kennedy’s opinion of Mr Newman as a man who was fabricating his symptoms. In my judgment, however, this is an impossible reading of the judge’s judgment, either at para 67 or as a whole. All the judge was saying was that, in the light of Mr Newman’s inconsistencies, he preferred Dr Kennedy’s sceptical view of Dr Plant’s case, of an organically based BMD for which there was no evidence at all, to Dr Plant’s case. If the case had been of a stress related functional BMD, then the argument would have gone down a different track. It seems to me that the judge was entirely justified to come to the preference that he did.

[124]The judge went on, quite naturally in such circumstances, to say (at para 67) that even if he did not prefer Dr Kennedy’s evidence, Mr Newman had failed to prove his case. That takes me to the next topic.

Burden of proof

[125]In the circumstances, it seems to me that the judge was fully entitled to determine this issue on the burden of proof. The judge referred to Pickford v. Imperial Chemical Industries

[1998] 1 WLR 1189

. The claimant there was a typist who complained against her employer about an organic repetitive strain disorder. The defence was that the condition was psychogenic, not organic. The judge found that the claimant had failed to satisfy him that it was organic and caused by the typing. The court of appeal, by a majority, allowed an appeal, finding that the judge’s conclusion was against the weight of the evidence and of the natural inference that the condition was caused by the typing. The House of Lords allowed the defendant’s appeal, saying that the judge had been entitled to his conclusions. Lord Hope of Craighead gave the leading speech. He said (at 1200A/C):

“There is no doubt that in most cases the question of onus ceases to be of any importance once all the evidence is out and before the court. But in this case it was not so simple. As Lord Thankerton observed in Watt v. Thomas [1947] A.C. 484, 487 the question of burden of proof does not arise at the end of the case except in so far as the court is ultimately unable to come to a definite conclusion on the evidence, or some part of it, and the question arises as to which party has to suffer from this. From time to time cases arise which are of that exceptional character. They include cases which depend on the assessment of complex and disputed medical evidence, where the court finds itself in difficulty in reaching a decision as to which side of the argument is the more acceptable. I think that this was such a case, and that the judge was justified in reminding himself where the onus lay as he examined the evidence.”

[126]At page 1201 Lord Hope continued by emphasising that the onus lay on the claimant to prove the correctness of her case, not on the defence to prove some alternative explanation. That would be to invert the burden of proof. He also stressed the advantage that the trial judge had in hearing and seeing the evidence given.

[127]Mr Foskett relied on Stephens v. Cannon

[2005] EWCA Civ 222

(14 March 2005, unreported) where this court, in the judgment of Wilson J with which Auld and Arden LJJ agreed, restated authorities relating to the use of burden of proof and to adequate reasoning (but without reference to Pickford v. ICI) and said (at para 46) that resort to the burden of proof had to be exceptional, used only after striving to reach a decision, and accompanied by adequate reasoning as to why a party had won or lost. The court was there discussing a problem of valuation of a house. The experts were divided by £400,000 by reference to 16 separate issues. The master made no attempt to make any findings in relation to any of those issues, but plumped for one party’s expert’s figure simply on the basis of the burden of proof. In those circumstances there can be no surprise that this court concluded that there had been no adequate or fair adjudication of the issue, which it defined as “what, in the light of the evidence of the two valuers, was the probable value of the property?”

[128]In my judgment, however, Stephens v. Cannon throws no light on this case. We are concerned with the problem considered in Pickford v. ICI, not with the totally different type of issue (where the solution is somewhere along a range of values) considered in the later case. Nor are we concerned with a judge who has not grappled conscientiously with all the issues of fact and opinion in the case before him, or has failed to give adequate reasons for his conclusions. I cite English v. Emery Reimbold & Strick Ltd

[2002] EWCA Civ 605

[2002] 1WLR 2409

in order to contrast the jejuneness of the judges’ reasons in the three cases there considered by this court, and bear in mind that even so all three appeals were dismissed.

Post concussional syndrome

[129]Mr Foskett’s main complaints under this heading were that the judge ought not to have adopted Dr Jacobson’s opinion that the syndrome had ended by about August 2000, nor found, in the absence of any evidence, that Mr Newman’s sick role or psychological dependency would end within another two to three years after trial.

[130]The judge’s conclusions show that, in the main, he adopted a nuanced approach to the experts’ evidence about post concussional syndrome. In effect, he found that the accident had caused Mr Newman to suffer from such a syndrome and that, as extended by psychological causes to be explained in large part in terms of his own personality, the syndrome, at any rate psychologically speaking, was continuing to exist and would continue to exist for another two to three years until rehabilitation was achieved. In a physical sense the syndrome had ended by August 2000, but in a psychological sense it had yet to be healed.

[131]In my judgment this conclusion, which used some of Dr Jacobson’s evidence, but by no means adopted all of it (if it had, Mr Newman would have received very little in compensation), was one that the judge was well entitled to reach. The evidence before him was that most sufferers of such a syndrome have recovered from it within three months, and that only some 21% have failed to recover after one year. Dr Jacobson gave an acceptable reason for thinking that, in physical terms, Mr Newman had recovered by the end of that year. However, he was then in the process of entering into his sick role. Although Dr Jacobson understood that sick role as something different from a psychological extension of the syndrome, the judge was entitled to consider that properly understood Mr Newman’s dependency should be regarded in the latter light. But in the circumstances he was not bound to go on to regard that dependency as permanent. The evidence was that in the absence of a head injury there was no reason why, even after this length of time, Mr Newman could not be helped towards a recovery, especially post-trial. He himself wished to bring his period of dependency upon the Salmons to a close and to recover his independence. It seems to me that no complaint can be made about the judge’s findings.

Quantum

[132]In the circumstances very little need be said about quantum. In my judgment the judge has been generous in awarding loss of earnings at the rate of £16,500 per annum. Mr Newman last worked as a draughtsman in 1994, five years before the accident; and his income in the year before the accident had been about £2,000.

[133]Nevertheless, there is, as it seems to me, something of an issue in relation to loss of earnings from writing and lecturing. The judge found that Mr Newman would not be able to write or lecture until after he had been rehabilitated. However, as to that he said that the fruits of the writing which had been interrupted at the time of the accident, such as they might be, would still await him when he had been rehabilitated. Mr Foskett submits that Mr Newman will still have lost, by the end of that period, nine writing years. He should be compensated for that, and for the loss of his lecturing opportunity, at a rate which reflects his loss of a chance of such earnings.

[134]As for the writing, however, the judge also found (at para 80) that “There is no evidence before me as to what earnings from publishing, if any, there might be after those projects have been completed”. That finding has not in itself been challenged. It seems in any event to be well justified. In loss of a chance terms, the judge is saying that, when the projects current at the time of the accident are excluded because they can be pursued after rehabilitation (even though their prospects in 1999 did not, on the evidence, look good), any further earnings are, given the lack of evidence, so speculative as to be fanciful. There could, on that basis, be no loss of a chance recovery in that respect.

[135]As for the lecturing, Mr Foskett complains that the judge wrongly approached that issue on the balance of probabilities (at para 81). However, I do not agree. If the Colyer opportunity had been there, then a loss of that chance approach could have been taken. But the judge’s findings are saying that the opportunity was not there. It was not like litigation which may or may not have been won, or a competition which may or may not have led to success. There was, as the judge found, no contract with Mr Colyer, no evidence that Mr Colyer’s proposed study centre was ever set up, evidence that the French authorities would have prohibited the operation of such a centre, and no sign of it on the world wide web. In my judgment, on these facts the loss of a chance does not arise.

[136]I would add that, even if Mr Newman’s BMD symptom had been run and successfully run as part of a case on post concussional syndrome, which it was not, it is hard to see how it could have affected the judge’s overall view of quantum, save possibly to lead to some uplift on general damages.

Conclusion

[137]For all these reasons, I would dismiss this appeal.

[138]I agree.

[139]I also agree.