Turner & Anor v Jordan & Anor [2010] EWHC 1508 (QB)

[2010] EWHC 1508 (QB)

Case No HQ08X04823

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 02/07/2010

Before

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

(sitting as a Judge of the High Court)

Between

(1) MARK STEPHEN TURNERClaimants

(2) LOUISE JOANNA TURNERClaimant

(1) JOSEPH AARON JORDANDefendants

(2) MOTOR INSURERS BUREAUDefendant

The first claimant in person, assisted by the second claimant for in person

for The first defendant did not appear and was not represented

Stephen Worthington Q.C.(instructed by Weightmans LLP) for second defendants

Hearing Hearing dates: 8, 9, 10, 11 and 14 June 2010

Judgment

[1]At about 3.00 p.m. on Sunday, 11 December 2005 the claimants, Mr. and Mrs. Mark Turner, were in Mr. Turner’s Jaguar motor car, registration number G2 MST, with their daughter, Jordan. Mrs. Turner was driving. Mr. Turner was in the front passenger seat. Jordan was in the rear. As the car was travelling south-east along Rochester Road, Burham, Kent, a Ford Escort motor car, registration number J86 LOW, driven by the first defendant, Mr. Joseph Jordan, was driving along the road in the opposite direction. That motor car was overtaking vehicles parked on its nearside. Mrs. Turner slowed the Jaguar motor car to a stop near the kerb on her nearside. However, the Ford Escort motor car skidded across the centre of the road and collided with the Jaguar motor car. Medical records relating to the treatment of the injuries sustained by Mr. Turner in the accident suggest that the speed of the impact was about 30 miles per hour, although other notes indicate that the speed of impact may have been as high as 70 miles per hour.

[2]Mr. Turner was born on 17 September 1972, so he was aged 33 years at the date of the accident.

[3]Both Mr. Turner and Mrs. Turner were wearing seat belts at the time of the collision. In the impact Mrs. Turner sustained a whiplash injury to her neck and back and a soft tissue injury to the right wrist. Mr. Turner also appeared to have sustained relatively minor injuries. He was taken to Maidstone Hospital by air ambulance. There it was found, on examination, that his back hurt, that his neck was tender in the area of the second to fifth thoracic vertebrae, his right groin and hip were tender, as was his left knee, but there was no obvious swelling or contusion. A CT scan performed on the day of the accident did not reveal any skull fracture or other abnormality. An MRI scan of the cervical spine undertaken on 21 December 2005 also showed no abnormality.

[4]On 14 December 2005 a right inguinal hernia was detected. A right inguinal herniorrhaphy was performed on 13 January 2006.

[5]Mr. Turner remained in hospital until 19 January 2006.

[6]It transpired that Mr. Jordan, the first defendant, was uninsured. Consequently, when, on 4 December 2008, the claim form in this action was issued claiming damages on behalf of each of Mr. Turner and Mrs. Turner in respect of the injuries they respectively were said to have sustained as a result of the accident on 11 December 2005, the second defendant, Motor Insurers’ Bureau (“MIB”), was named as a party. Mr. Jordan took no part in this action. In the Defence served on its behalf MIB admitted liability for the injuries suffered by both Mr. Turner and Mrs. Turner, but did not admit the extent of the injuries allegedly sustained by either. By order of Master Foster made on 22 June 2009 judgment was entered in favour of Mr. Turner against Mr. Jordan for damages to be assessed. Subsequently the claim of Mrs. Turner was settled by MIB. This trial was thus concerned with the issues of causation and quantum arising as between Mr. Turner and MIB.

[7]The principal focus of the trial was the question whether Mr. Turner had in fact suffered, as a result of the accident on 11 December 2005, the catastrophic consequences of which he complained, or whether the alleged consequences had been grossly exaggerated. Several versions of a Schedule of Loss were produced on behalf of Mr. Turner at different stages of the litigation. The most recent, mirroring, to an extent, an earlier version, included a Section 4 entitled “AS A RESULT OF THE ACCIDENT”:- “As a result of the accident on 11 December 2005, the claimant sustained the following principal injuries:a. A. Head, neck and various soft tissue injuries

b. B. A conversion disorder/Somatoform Disorder

c. C. Chronic Fatigue Syndrome

d. D. Neuropathic bladder

e. E. Right inguinal hernia

f. F. Pain that has never subsided

g. G. Unexplained numbness to limbs and loss of sensation at times

h. H. Confusion and rages

i. I. Speech impairment

j. J. Floaters and inability to see properly through left eye

k. K. Vomiting, gastric reflux, indigestion and inflammation of the oesophagus The claimant was an in-patient at Maidstone hospital from 11 December 2005 – 19 January 2006. On 13January 2006, the claimant underwent a hernia repair operation. The claimant was then home until 21 February 2006. On 21 February 2006, the claimant was admitted to Kings [sic] College Hospital where he remained until 3 March 2006. On 3 March 2006 he was readmitted to Maidstone Hospital where he remained until 24 March 2006. The claimant was then discharged to his pre-accident accommodation. In January 2007 he was admitted to the West Kent Neuro-Rehabilitation unit, in Sevenoaks for 5 weeks. He was discharged in February 2007. The claimant has been left with the following main problems, which are likely to be permanent:-

(i) The claimant’s memory and concentration remains extremely poor, such that he cannot safely be left alone. The claimant’s mood is very low, leaving him confused at times and has sudden outbursts.

(ii) The claimant no longer has useful vision in his left eye which is extremely blurred with floaters.

(iii) The claimant has suffered and still suffers to date from extreme fatigue since the accident.

(iv) The claimant suffers from musculo-skeletal complaints. Movements are extremely difficult because of involuntary tremor and jerks at times.

(v) The claimant reports that he suffers from severe pain that disrupts his sleep. The claimant has pain in his back and at the back of his head which has always felt swollen and abnormal. He gets headaches and electric shock sensations which travel down his arms and legs but which stop short at his left knee which feels numb and dead. The claimant relies heavily on analgesics which are morphine based, however the claimants [sic] pain is never fully relieved only eased slightly.

(vi) The claimant has numbness in both legs but worst in his left leg. He relies on a wheelchair on long distances but also uses crutches as is unable to walk without these. The claimant also needs to wear an orthotic callipers [sic].

(vii) The claimant also suffers from combination of urinary frequency, urgency and urge incontinence. He has been diagnosed with hypofonic [sic] detrusor secondary to his nerve injury. He now has to self catherize [sic] daily, for the rest of his life.

(viii) The claimant has reduced attention, concentration and speed of information processing. Speech is extremely abnormal and poorly intelligible with a combination of marked dysfluency, dysphonia and dysarthria.

(ix) The claimant suffers from persistent nausea and vomiting if he does not take his prescribed medication. Dr. Richard Hardie, Consultant Neurologist, concludes that there is no evidence that the claimant has suffered a significant traumatic brain injury. He has been left with persistent physical, cognitive and psychological problems since the index injury for which no medical explanation is apparent. Dr. Hardie states that these are typical of a conversion disorder. Dr. Francesca Denman, Consultant Psychiatrist is of the opinion that the claimant is suffering from a conversion disorder. Dr. Denman states that the prognosis for any recovery in respect of the conversion disorder is poor and stands at a 10% chance of major improvement. Dr. Denman states the claimant may also suffer from chronic fatigue syndrome. In this regard, some decrease in his fatigue syndromes could occur in the future. Dr. Denman states she does not think there is much prospect that the claimant will be able to return to work in the foreseeable future.”

[8]As perhaps emerges from that passage, it was common ground between those medical experts who had examined Mr. Turner that there was no evidence of an organic cause related to the accident on 11 December 2005 for any of the alleged continuing symptoms of which he complained.

[9]It appears that it was the absence of any evidence of an organic cause which resulted in the diagnosis of Dr. Denman of a conversion disorder. The diagnostic criteria of a conversion disorder set out at Diagnostics Statistical Manual – IV (usually abbreviated to DSM-IV) TR (2000) 300.11 are:- “A One or more symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition. B Psychological factors are judged to be associated with the symptom or deficit because the initiation or exacerbation of the symptom or deficit is preceded by conflicts or other stressors. C The symptom or deficit is not intentionally produced or feigned (as in Factitious Disorder or Malingering). D The symptom or deficit cannot, after appropriate investigation, be fully explained by a general medical condition, or by the direct effects of a substance, or as a culturally sanctioned behaviour or experience. E The symptom or deficit causes clinically significant distress or impairment in social, occupational, or other important areas of functioning or warrants medical evaluation. F The symptom or deficit is not limited to pain or sexual dysfunction, does not occur exclusively during the course of Somatisation Disorder, and is not better accounted for by another mental disorder.”

[10]In essence a conversion disorder is a psychological condition in which a person genuinely experiences symptoms suggestive of a neurological or other general medical condition for which there is no physical cause.

[11]It is, I think, obvious that, subject, in some cases, to the possibility of testing designed to investigate the consistency of alleged symptoms, the diagnosis of a psychological condition is dependent upon consideration of information provided by the person supposed to be suffering from the condition in question. Again, subject to the type of testing which I have mentioned, there is, in the case of an alleged psychological condition, no objective evidence separate from reports from the patient of whether he in fact experiences what he alleges. There is no blood to be seen, no fracture to be examined.

[12]A consequence of the fact that diagnosis in a psychiatric case depends upon assessment of what is reported by the patient is the necessity for the psychiatrist confronted by a patient to consider whether or not to accept at face value what the patient reports. Inevitably there is a disposition on the part of the psychiatrist to take as genuine what the patient reports, because otherwise it is difficult to consider the issue of diagnosis.

[13]Dr. Denman interviewed Mr. Turner in her consulting rooms in London on 5 February 2009 in company with Mrs. Turner. Subsequently Dr. Denman prepared a report, dated 9 March 2009, for the purposes of this action. In that report Dr. Denman considered the question of the diagnosis of Mr. Turner. Having set out the diagnostic criteria of a conversion disorder, she went on:- “Mr. Turner satisfies all but one of these criteria in that conflicts do not evidently exacerbate his symptoms. I consider this sufficient to make a firm diagnosis of conversion disorder because the criterion that requires psychogenic conflict is not these days considered to be central to the diagnosis. His condition also displays some features of the Chronic Fatigue Syndrome. However this is not generally classified as a psychiatric disorder and criteria for its diagnosis are somewhat less generally agreed furthermore Mr. Turner does suffer from fatigue but this is not his principle [sic] symptom. The major differential diagnosis is of an as yet undiscovered neurological condition however the likelihood of this is generally thought to be low.”

[14]Later in her report dated 9 March 2009 Dr. Denman dealt with the question of prognosis:- “Mr. Turner’s illness has remained fairly static for a considerable period of time. He has had adequate trials of appropriate treatment. I consider it unlikely that his condition will alter much in the near or medium future. Although the prognosis for patients whose condition is associated with litigation is generally thought to be worse there is sadly no evidence that patients improve when their legal case is over. Thus, in general I think Mr. Turner’s prognosis is poor and he stands only a ten percent chance of major improvement. However I think it too early to say that Mr. Turner will never improve at all in relation to his fatigue symptoms. Studies of chronic fatigue syndrome show patients can improve even after 5-7 years of chronic ill health. It may, therefore be hoped that some decrease in his fatigue symptoms could occur.”

[15]The foundation for the challenge on behalf of MIB to the opinion of Dr. Denman was the results of video surveillance undertaken of Mr. Turner on 7 May, 12 May, 2 September, 10 September and 22 September 2009.

[16]Various medical experts were instructed on behalf of MIB in relation to the trial of the claims of Mr. Turner. Three of them were shown, and commented upon, the video films which I have mentioned. Those films were produced in court. I viewed them on two occasions. The first occasion was in the course of the preparation for the hearing and in response to a request to view the films contained in the written skeleton argument of Mr. Stephen Worthington Q.C., who appeared on behalf of MIB. The second occasion was during the course of the cross-examination of Mr. Turner. Mr. Turner did not dispute that the films showed him and his activities on the days in question. He did not suggest that what could be seen in the films was in some way unrepresentative of what he did on those days. He did, however, contend that each of the days was, for him, a “good” day, in contrast to the many “bad” days which he also experienced. He also pointed out that there were extended periods of time on each of the days when he was filmed when he was not in shot. He suggested that during those periods he was in fact resting.

[17]There was only one, fleeting shot of Mr. Turner taken on 7 May 2009. What could be seen in the films taken on the other days was summarised, accurately in my judgment, so far as it went, in a supplementary report of Dr. Oliver Foster, dated 18 December 2009. Dr. Foster is a consultant neurologist and had been instructed in that capacity on behalf of MIB for the purposes of the trial. In his supplementary report Dr. Foster summarised what could be seen in the video films taken on 12 May, 2 September, 10 September and 22 September 2009 in this way:- “Surveillance from 12.05.09 shows Mr. Turner standing with 2 elbow crutches. He is seen walking a short distance without any apparent problems. He leans on his crutches at times, but does not appear to put significant weight upon them while walking. He appears to be engaging in conversation with other men working on site. Surveillance from 02.09.09 shows Mr. Turner walking with two elbow crutches to a branch of Furniture Village. He is seen dragging a large heavy trolley with his left hand. He is seen walking using his 2 elbow crutches, but at a reasonable pace, in a car park and then standing outside a mobile fast food outlet for a significant period drinking from a cup held in his left hand. At times he appears to be leaning on his crutches, but he remains standing for several minutes before walking to the door of a van which he opens. He then gets into the van quickly without any apparent problem. On 02.09.09 at approximately 12.33 he is seen standing at the back of a vehicle. He manipulates objects in the back of the vehicle without any apparent problem. He then walks with an irregular functional gait. He gestures freely with his hands and then gets into the passenger side of a car without any difficulty, putting his crutches in before he gets in. On 10th September Mr. Turner is noted attending in a wheelchair for a medical appointment. He appears to be unable to negotiate steps leading up to the building, staying in his wheelchair and is assisted by a number of individuals being wheeled in backwards. Later surveillance shows him getting out of a taxi without his crutches. He leans on the top of the vehicle while the driver gets the wheelchair out of the back of the vehicle. He uses his 2 crutches, walking without putting much weight upon them. Surveillance from 22.09.09 shows Mr. Turner standing behind a van with another male. He leans at times on crutches, but stands for a prolonged period. He is seen holding one crutch with his left hand. Later, he is seen bending down with what may be a shovel in his hand. He is seen walking with one crutch. At one stage he lifts both his arms above his head, while gesturing to a male with whom he appears to be having a discussion. He is seen bending to pick up what appears to be a stone which he throws with his right hand on two occasions. He is later seen by the side of a road. He is seen crouching down using a measuring tape which he holds with both hands. He assists what appears to be a workman in holding a piece of wood. He gets up easily and then crouches down again getting up easily for the second time. He then crouches for a 3rd time, and once again gets up easily. He is seen in profile, but does not appear to using crutches in this phase of the video footage.”

[18]A surveillance log put in evidence recorded, as in fact was also recorded on the film itself, that Mr. Turner had been filmed on 22 September 2009 undertaking the activities summarised in the supplementary report of Dr. Foster dated 18 December 2009 between 11.12 hours and 14.11 hours. While the filming was not continuous, the activities shown appeared to involve Mr. Turner and a workman at the entrance to Mr. Turner’s drive between 11.12 hours and 11.18 hours, work in the rear garden of Mr. Turner’s house, in the course of which he threw a couple of stones, lasting from 11.47 hours until 12.29 hours, further shots in the rear garden at 13.40 hours and 13.42 hours, and assistance to the workman in measuring and so forth taking place between 13.45 hours and 14.11 hours.

[19]It is, I think, material to add to the summary of what could be seen in the video films given by Dr. Foster a few comments of my own.

[20]As it seemed to me, the heavy trolley which Mr. Turner was seen pulling with his left hand on 2 September 2009, which was not loaded, he pulled confidently and easily. As is noted later in this judgment, Mr. Turner professed to have particular difficulty in the use of his left arm and hand.

[21]What was filmed on 10 September 2009 was in fact a visit by Mr. and Mrs. Turner to see Dr. Graham Powell, a clinical neuropsychologist instructed on behalf of MIB for the purposes of this action. The filming covered Mr. Turner entering a taxi at his home; arriving at the consulting rooms of Dr. Powell in the taxi; getting out of the taxi and entering the front door of the consulting rooms; and getting out of the taxi on return home after the visit. There was a striking contrast between the activities which took place in the vicinity of Mr. Turner’s home and those which took place outside the consulting rooms of Dr. Powell. Before leaving in the taxi for the consulting rooms of Dr. Powell Mr. Turner approached the taxi with crutches. He seemed to get into the taxi without difficulty. On arrival at the consulting rooms of Dr. Powell, however, a wheelchair was produced from the boot of the taxi and Mr. Turner climbed in, although it was in fact only a few yards from where the taxi stopped to the front door of the consulting rooms of Dr. Powell. Between the pavement and the actual front door there were two or three low steps. Mrs. Turner pushed the wheelchair to the foot of the steps. She then stopped and, leaving Mr. Turner in the wheelchair at the foot of the steps, rang on the door. What appeared to be a rather slim, elderly lady appeared. Mrs. Turner, after some conversation with this lady, returned to the taxi, and the taxi driver got out and came to where Mr. Turner was waiting. Mrs. Turner, the taxi driver and the elderly lady then manhandled Mr. Turner in the wheelchair up the steps and through the front door. However, on the return to Mr. Turner’s home, once the taxi stopped Mr. Turner got out, easily, and without bringing any crutches with him. He stood beside the taxi with his arms resting on the roof. He then made his way towards his house with crutches.

[22]In the film taken on 22 September 2009 Mr. Turner’s use of crutches did not suggest to me that he actually required them for assistance in walking. While the filming did not always enable one to see precisely what use, if any, Mr. Turner was making of crutches – for example, when he was helping the workman and crouching down three times – it certainly did show him on occasions using one crutch, rather than two, and brandishing that crutch, as opposed to leaning heavily upon it. The use of the single crutch seemed almost to be as a fashion accessory, not as a necessary aid to walking.

[23]At the commencement of this action Mr. Turner was represented by solicitors and counsel under the terms of a conditional fee agreement. During the period that Mr. Turner had the benefit of legal representation a number of medical experts and a care expert, Mrs. Debbie Eaton, were instructed on his behalf. It seems that Mr. Turner ceased to have the benefit of legal representation at about the beginning of April 2010. By that date expert reports from Dr. Hardie, Mr. Collin and Dr. Denman had been served, as had a care report dated 20 November 2009 from Mrs. Eaton. At the point at which Mr. Turner ceased to have the benefit of legal representation the views of the medical experts instructed on his behalf on the implications of what could be seen in the video films were not known, and no steps had been taken in accordance with existing directions for experts to meet and to prepare statements of the matters about which they were agreed and the matters about which they did not agree. Those matters were raised before me at a hearing in this action on 13 April 2010. On that occasion I made, so far as is presently relevant, these orders:- “1. The Claimant shall serve up-dated medical evidence from Dr. Hardie, Mr. Collin and Dr. Denman which includes their responses to the Second … Defendant’smedical evidence and the surveillance evidence by 4 pm on 20 April 2010. 2. There shall be joint statements from Dr. Hardie/Dr. Foster, Mr. Collin/Dr. Scurr and Dr. Denman/Dr. Jacobson setting out the issues on which they agree and disagree with reasons for any disagreement by 27 April 2010. 3. If the Claimant fails to serve reports in accordance with paragraph 1 above or to instruct his experts to produce joint statements in accordance with paragraph [2] above, he shall not be permitted to rely on the evidence of any such expert at trial herein. 4. In the event that the Claimant serves up-dated reports in accordance with paragraph [1] above and the experts produce joint statements in accordance with paragraph [2] above, the parties shall exchange expert care evidence by 4 pm on 4 May 2010. In absence of such up-dated medical evidence and joint statements the parties shall not be permitted to rely upon expert care evidence at trial. 5. The care experts shall provide a joint statement pursuant to any exchange of reports in accordance with paragraph [4] above setting out the issues on which they agree and disagree with reasons for any disagreement by 11 May 2010.”

[24]At that hearing, and subsequently, Mr. Turner acted in person, with the assistance of his wife. At the trial he also had the help of his mother, Mrs. Margaret Jordan, and, for part of the time, his step-father, Mr. Roy Jordan.

[25]What in the event happened after the hearing on 13 April 2010 was not exactly covered by the terms of my order.

[26]Dr. Denman provided a letter dated 20 April 2010 in which she commented:- “As you know I provided a report on your husband and then a supplementary report [which was made following the production of further information to Dr. Denman, but which added nothing to the first report] as well and subsequent to that report I was shown some video surveillance material. You have asked me to comment on the conclusions of my report in the light of that material. I believe that the surveillance material shows Mr. Turner functioning at a level rather better than he described to myself or the other experts asked to comment on his case. In such situations there are often suggestions that patients may be exaggerating their descriptions of their symptoms deliberately and consciously for financial or other gain. Behaviour of that sort is not a psychiatric matter and there are no special forms of expertise that allow psychiatrists to say with confidence what motivation may lie between discrepancies between a patient’s account of their difficulties and objective evidence of those difficulties. However it is the case that variability in functioning and distortions in the way in which functioning is appraised and described are common features of somatisation disorder which, as you know, is a condition from which I believe Mr. Turner suffers. In such situations the sufferer is not consciously altering their account away from the true situation but is genuine in their account of symptoms tending to describe things at their worst rather than to take account of or describe better aspects of function.”

[27]A copy of that letter was provided to the solicitors acting on behalf of MIB.

[28]No other expert instructed on behalf of Mr. Turner provided any sort of report, however informal, setting out any views on the implications of what could be seen in the video films.

[29]Dr. Denman and her opposite number, Dr. Robin Jacobson, consultant neuropsychiatrist instructed on behalf of MIB, did, however, produce a joint statement (“the Joint Statement”) of the matters about which they agreed and the matters about which they disagreed. That was signed and dated 23 April 2010.

[30]In the circumstances it was accepted on behalf of MIB that the evidence of Dr. Denman could be received at the trial on behalf of Mr. Turner, and Dr. Denman was indeed called to give evidence. No other expert evidence was adduced, or sought to be adduced, on behalf of Mr. Turner.

[31]Mr. Turner himself gave evidence at the trial. He called as witnesses of fact on his behalf his wife, his mother and his step-father.

[32]The only factual evidence called on behalf of MIB was from those who took the video films. However, a number of experts were called to give evidence. They included Dr. Jacobson, Dr. Foster and Dr. Powell, all of whom I have already mentioned. The other experts called were Mr. John Scurr, a consultant vascular and general surgeon, and Mrs. Gillian Conradie, a care expert.

[33]Mr. Scurr was called to give evidence on the question whether the right inguinal hernia which was discovered on 14 December 2005 had been caused by the accident on 11 December 2005. In a report dated 9 September 2009, in a section entitled “Opinion & Prognosis”, Mr. Scurr wrote, so far as is presently material:- “a. Three days after his accident of 11th December 2005, Mr. Turner noted a right inguinal hernia. There had been no complaint of this hernia beforehand. When examined three days after the accident there was no tenderness and the hernia itself was entirely reducible. b. It has been suggested that the accident was the cause of the right inguinal hernia. c. What is clear is that he had a right inguinal hernia diagnosed three days after the accident. He then went on to have this repaired some months later [sic – it was actually about one month after the diagnosis that the repair was effected] and has made a full and complete recovery. d. None of his current symptoms relating to his disability in any way relate to the hernia or treatment of the hernia. e. Whilst I would accept that a hernia can occur as a result of an accident, I think it highly unlikely in this particular case for the following reasons: f. To get a hernia in the absence of pre-existing weakness or defect Mr. Turner would have had to have sustained a very serious abdominal injury. g. This injury would have involved severe compression such that the contents of the abdominal cavity would be squeezed out through a weak site. h. If this had happened then I would have expected Mr. Turner to have complained of symptoms immediately and when examined three days later there would have been evidence of tenderness and pain. i. Although there is no record to suggest the hernia predates the accident I think on the balance of probabilities it is highly likely that Mr. Turner had the right inguinal hernia before the accident. It is possible that he was unaware of this and it is possible that following the accident and following careful examination the presence of an asymptomatic hernia was revealed. j. I think it is probable that Mr. Turner had a hernia and that Mr. Turner required surgical treatment for this, irrespective of whether he was involved in an accident.”

[34]Although Mr. Scurr attended the trial and gave evidence in chief, in the event Mr. Turner accepted the opinion of Mr. Scurr and did not challenge his views that treatment in hospital following the accident on 11 December 2005 was the occasion of the finding of the hernia, but that the accident had not itself caused the hernia. The pleaded case of Mr. Turner, however, had been to the effect that the hernia had been caused by the accident.

[35]In the result, by the end of the trial the physical consequences of the accident for Mr. Turner were not in dispute. It was common ground that those consequences were as I have already set out. What was in dispute were the psychological consequences of the accident.

The evidence as to the psychological consequences of the accident

[36]I have already set out the passages from the report of Dr. Denman dated 9 March 2009 in which she dealt with the questions of diagnosis and prognosis. In cross-examination she accepted that her diagnosis was based upon the assumption that the information about Mr. Turner’s abilities, thoughts and feelings which Mr. and Mrs. Turner had provided to her when she interviewed them on 5 February 2009 was accurate. She said that, in her view, it was a matter for the Court, and not for her, to determine whether the accounts given to her were in fact accurate. It seemed to me that that opinion lay at the root of the difference between her and Dr. Jacobson in relation to the question whether Mr. Turner continued to suffer from a conversion disorder. The respective positions of Dr. Denman and Dr. Jacobson on this point were conveniently set out in the Joint Statement:- “9. We disagree in our diagnoses, mainly because we disagree on Mr. Turner’s Reliability:10. Dr. Denman considers that Mr. Turner has a Conversion Disorder and that he also displays some features of Chronic Fatigue Syndrome. She notes that variability in functioning and distortions in the way in which functioning is appraised and described are common features of Somatisation Disorder/Conversion Disorder. Dr. Denman considers that the assessment of reliability in relation to evidence is a matter for the court and not a psychiatric judgement. If Mr. Turner is not consciously altering his account away from the true situation, but is genuine in his account of symptoms, tending to describe things at their worst, rather than to take account of, or describe better aspects of functioning then this would be consistent with a diagnosis of somatisation disorder.

11. Dr. Jacobson refers to his report for discussion of reliability, illness behaviour and the DVD evidence. While he agrees that variability of functioning is consistent with Somatisation Disorder, he was informed that there was no variation or good and bad day pattern to Mr. Turner’s left leg weakness. He notes a variability of a reported good and bad day pattern surprisingly selective to left upper limb functioning, but not to left leg functioning, sensory loss or blurred left vision. This is not the picture of somatoform/Conversion or Dissociative disorders. Importantly, he notes variation of symptom and disability depending on who Mr. Turner reports his symptoms to. For example, he told Dr. Denman that his perception was normal, yet told Mr. Ahfat a month later (30.03.09) that his poor vision in the left eye commenced with, and has persisted from, the index event. There are numerous discrepancies between the contents of the DVD and both accounts at interview and the witness statements. For example, discrepancy between Emma Jordan’s statement, which notes Mr. Turner’s need for substantial help most of the time in personal care and hygiene, and his ability repeatedly to bend, crouch and stand up quickly (DVD, 22.09.09). Dr. Jacobson considers that there is substantial conscious exaggeration.

12. Dr. Jacobson concludes that Mr. Turner probably developed an acute whiplash-type injury, with anxiety and intense pain, complicated by vomiting, then hernia repair, and further complicated by an initial Conversion Disorder, of unclear duration, probably not long. He may have had a depressive episode in mid-2007. Thus Mr. Turner probably commenced with a genuine psychiatric disorder, Conversion Disorder, but it is now very difficult to determine its duration, or when conscious exaggeration commenced and then, in his view, took over.”

[37]Although Dr. Jacobson interviewed both Mr. and Mrs. Turner on 20 March 2009 with a view to preparing a report on Mr. Turner, the report was not completed until 8 December 2009. The report was extremely lengthy. In total it ran to 147 pages. Of that the first 117 pages were prepared, in draft, before seeing the video films. The balance of the report comprised a review of additional records made available, together with a consideration of what could be seen in the video films. The first draft of the original 117 pages was modified in the final version of the report to take account of the additional material. Some 79 pages of the first 117 were devoted to an analysis and consideration of the medical records available in relation to Mr. Turner. Between paragraphs 101 and 231 Dr. Jacobson set out an extensive summary of what was noted during Mr. Turner’s stay in hospital between 11 December 2005 and 19 January 2006.

[38]Dr. Jacobson dealt in his report, at paragraphs 587 to 597 inclusive, with his examination of Mr. Turner on 20 March 2009:- “587. Examination revealed a man who was gaze avoidant throughout the entire interview, seated in a wheelchair, and who tended to mumble. I often had to ask him to repeat what he said because of his low voice. There was word repetition and occasional syllable repetition. His head tended to be tilted to the left. There was intermittent gross right leg tremor throughout the interview. Mr. Turner had initial quasi-writhing (dystonic) movements in the first half hour of the interview. Mr. Turner has his children’s names tattooed on his forearms. There are numerous excoriations on both forearms, left more than right, which he says are due to the Great Danes. Mr. Turner was cooperative during the interview. I saw increased inversion of the left ankle. I observed that he took the weight through the left leg when shifting position in the chair. I also observed him to lift the left foot. On examination there was the legs gross coarse tremor of the right lower leg. When I extended the left leg, there was contraction in that it was not heavy. When I let it go, there was less weakness or collapse than expected. There was equivalent wear and tear on the surfaces of his trainers. 588. Mr. Turner was drowsy intermittently through the interview and had to be awoken by his wife at times. His main worries are:

“Just the family’s all right. I’m not a burden”

. Views of the future:

“Ain’t got one”. 589. Mr. Turner was disorientated in time, stating that it was 1 pm, Thursday, February 2009, date unknown (in fact Friday, 20.03.09). 590. Mr. Turner gave me his address as 484 Rochester Road, Burham, Rochester (Correct). Asked for his postcode, Mr. Turner’s left side started twitching. He said, “Mike Echo Three, Hotel Romeo 1”

. His wife clarified that it is ME1, 3RH. 591. Mr. Turner named the Prime Minister as “Tony Blair”. Comment: At this stage he voluntarily moved the left leg. He named the President as “changed, coloured, B-A-R-M-Y, Obama”. 592. Mr. Turner named the reigning monarch as Queen Elizabeth and knew that her children were Charles and Andrew. 593. Forward digit span Doctor Patient 5,7,1,9 9,1,1,1,1,7,9,9,9,9 4,6,0 0,6,4 (Note he gives it in reverse when asked to give it forwards) 3.5.1 1,3, .. “that’s it” 594. Mr. Turner was able to register three words, slowly. I asked him to repeat back to me “apple, carrot, purple”. Mr. Turner started twitching, and repeated back “carrot, purple, in the garden, apple”. 595. Mr. Turner was asked to spell “world”. He said “W O R D”. I asked him to spell it backwards. “D O W O”. I asked him to recall three words:

“World, purple, there’s a third, one more …”

He then asked his wife for water. Comment: At first he could not find the word “purple” but pointed to a GCSE Physics book, which was purple in colour and eventually said purple. 596. Insight:

“They think I’m a nut nut”

. I asked him whether he thought doctors did not believe him, “They pin it on something”. 597. Interview of Mrs. Turner: Mrs. Turner did not wish to be interviewed on her own. She escorted me, on her own, to the hotel lift. She told me that sometimes her husband is better than his presentation today. Mrs. Turner was quite a cheerful woman, who was quick to answer for her husband, but could be interrupted to let him answer for himself. As noted above, the more detailed the questions I asked of Mr. Turner’s symptoms, the more facially flushed she was at the start of the interview.”

Doctor Patient

[39]Based upon the material which he considered, which, save as already quoted, it is not necessary to reproduce for the purposes of this judgment, Dr. Jacobson expressed, in paragraphs 678 to 682 inclusive, his “Conclusion on the balance of probabilities”:- “678. … Taking all the evidence into account, I conclude that Mr. Turner probably developed an acute whiplash-type injury, associated with anxiety and apparently intense pain. This was quickly complicated by vomiting, leading to an OGD, and then a hernia repair. Dr. Hadden, 09.02.06, considered that the right inguinal hernia repair was not felt to be urgent, but was expedited because Mr. Turner was in such severe pain. The index admission was complicated by with [sic] several medical events, but abnormal illness behaviour preceded hernia surgery.679. The index event was complicated by psychiatric disorder, essentially a Conversion Disorder, also associated with symptoms of anxiety and depression. Assuming that Mr. Turner is reliable, he probably had a depressive episode in mid 2007. Mr. Turner has denied significant depression, although he retrospectively described low mood and suicidal ideation following the perceived poor prognosis given by Dr. Hadden.

680. It was my opinion before I saw the DVD evidence that Mr. Turner was not as disabled as he and his wife claimed. Although it is a matter for the Court, I considered that there was substantial exaggeration in this case. I thought it difficult to exclude a mild, possibly a moderate, continuing conversion disorder, which is a genuine psychiatric disorder. I thought that probably about 50% of Mr. Turner’s disability evident in March 2009 was consciously exaggerated; the remainder reflecting a combination of genuine psychiatric disorder, exhibition of the Sick Role and side effects of polypharmacy, including opiates.

681. Inspection of the DVD and other records has not only confirmed but amplified my suspicion about conscious exaggeration.

682. It is now my view, having seen the DVD evidence and further records, that there is very substantial conscious exaggeration in this case. Mr. Turner probably commenced with a genuine psychiatric (dissociative) disorder, which is no longer the case. It is now very difficult to establish when genuine psychiatric disorder reduced and conscious exaggeration took over.”

[40]A rather curious side issue which arose between Dr. Denman and Dr. Jacobson, which is not actually material, as such, to any question which I have to decide, was whether malingering was a psychological condition. It has been the unhappy lot of the courts of this country, and the Armed Forces of the Crown, over many years to have to consider, from time to time, cases involving alleged malingering. The verb “malinger” is an ordinary English word, defined in The New Shorter Oxford English Dictionary, 4th ed., 1993, as meaning “Pretend or exaggerate illness in order to escape duty or work”. However, DSM-IV-TR at V 65.2 has a definition of malingering as an “Additional condition that may be a focus of clinical attention”. Dr. Denman, to her credit, as it seems to me, does not agree that malingering is a psychological condition. However, it seems that in the United States of America, whence comes DSM-IV, it may be considered such. The definition in DSM-IV-TR is:- “The essential feature of Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. Under some circumstances, Malingering may represent adaptive behaviour – for example, feigning illness while a captive of the enemy during wartime. Malingering should be strongly suspected if any combination of the following is noted: 1. Medico-legal context of presentation (eg., the person is referred by an attorney to the clinician for examination) 2. Marked discrepancy between the person’s claimed stress or disability and the objective findings. 3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen. 4. The presence of Antisocial Personality Disorder.” Malingering should be strongly suspected if any combination of the following is noted:

[41]All the DSM-IV-TR definition of malingering appears to do is to expand the dictionary definition and to classify what is in fact dishonest behaviour as a psychological condition.

[42]The presentation of Mr. Turner to Dr. Jacobson on the occasion of their meeting to enable Dr. Jacobson to prepare his report appears to have been rather similar to his presentation to Dr. Foster and to Dr. Powell on the occasions of their meetings.

[43]Dr. Foster examined Mr. Turner on 4 October 2007 and produced a report dated 8 October 2007 following that examination. In that report Dr. Foster wrote of the examination:- “When assessed on 04.10.07, Mr. Turner presented in a wheelchair, wearing a brace on his left leg. His presentation was strongly suggestive of non-organic illness behaviour with a variable stutter, variable slurring of speech, a grossly abnormal pattern of upper limb function with rapid alterations in tone between rigidity and flaccidity, clumsy movements, particularly of the left arm and grossly distorted gait with a non-organic stiff legged and unstable pattern which would require great muscular effort to produce. On formal testing, there was a pseudohemiparesis affecting his left arm and leg. He reported vision in the left eye below finger-counting acuity, but at other times it appeared that he had a hemianopic visual disturbance with tunnel vision. He reported reduced sensation up to the groin on the left leg to pinprick and to the knee on vibration testing.”

[44]In the “Opinion” section of his report dated 8 October 2007 Dr. Foster wrote, amongst other things:- “Mr. Turner was involved in a road traffic accident on 11.12.05. It is likely that he suffered a whiplash injury, given his initial complaint of neck pain, but extensive investigation at Maidstone Hospital showed no other abnormality. He subsequently developed vomiting and was found to have a small oesophageal lesion secondary to reflux. This may have antedated his accident given that there is correspondence from around this time which indicates that he had been referred because of black bowel motions (possibly reflecting bleeding from this lesion). He was also noted to have a right inguinal hernia. Mr. Turner appears to have had problems mobilising, and is noted in the records to have become angry and aggressive when it was suggested that he did not require any active treatment. He then went on to suffer an episode of “collapse” and thereafter developed abnormal limb movements and variable disturbance of speech. His symptom complex evolved, and by the time he was assessed by Dr. Hadden he had marked abnormalities of speech and movement. He was thoroughly investigated both at Maidstone Hospital and at Kings [sic] College Hospital, and was seen by a number of neurologists. The eventual diagnosis was of non-organic behaviour. He has subsequently undergone appropriate rehabilitation. Throughout the medical records there are indications here and there of marked improvement, but his presentation to me on 04.10.07 appeared very similar to his presentation to Dr. Hadden in early 2006. Having reviewed all the evidence I am in no doubt that Mr. Turner’s presentation is entirely due to non-organic illness behaviour. He has not sustained any significant organic neurological injury. Mr. Turner appears to have been reluctant to be discharged from hospital in late December, and his behaviour appears to have deteriorated after an episode when he became angry and aggressive with medical staff. Thus, his abnormal behaviour appears to have evolved gradually rather than having been present from the outset. Some patients with conversion disorders/non-organic illness behaviour show immediate onset of symptoms, while in other cases the symptoms evolve as appears to have been the case here. The prognosis for such non-organic illness behaviour is very variable and the prognosis is worse when patients and their relatives are reluctant to accept the diagnosis as appear to be the case here. The factors leading to the development and perpetuation of such non-organic illness behaviour are often complex, and psychiatric assessment is frequently unrevealing. Factors leading to perpetuation of such abnormal illness behaviour may include an element of a false belief system that they are more injured than they really are, secondary gain relating to the sick role (for example work avoidance, increased attention within the home or ongoing litigation) and the awkwardness of having to accept that their illness behaviour to date was not physically-based. Behavioural routines may become increasingly entrenched, and in general the longer such an organic illness state persists, the poorer the prognosis. If litigation were not involved, Mr. Turner’s prognosis would be regarded as poor at this stage with a high likelihood of continuing disability. This is however harder to judge in the context of litigation which can represent a powerful perpetuating factor. … Mr. Turner is currently, reportedly, in receipt of a very substantial care package with considerable gratuitous care from his wife. In patients with abnormal illness behaviour, the true level of care requirements can be very difficult to estimate, and are to some extent dependent on whether the individual manipulates behaviour in order to secure high levels of attention throughout the day.”

[45]Mr. Turner attended Dr. Powell with Mrs. Turner so that Dr. Powell could administer various tests to Mr. Turner. Following the tests Dr. Powell prepared a report dated 3 November 2009. When he wrote that report Dr. Powell had not seen the video films. At section 8 of the report dated 3 November 2009 Dr. Powell described Mr. Turner’s presentation:- “Mr. Turner arrived with his wife, in a wheelchair, but he said he could take a few steps with crutches or with help. He said he had difficulty using his left hand and that his right hand was best (and even with his right hand he found it difficult to write). Given his physical problems it was difficult to find tests he could do. He had an odd ‘stammer’, like an echo after a word, plus repetition of the first phoneme. There were whole body shudders and twitches. Half way through the assessment he took oxynorm for the back pain. He was cleanly dressed in an Ireland rugby shirt and jeans. He had a short beard and looked tired and in pain. He would say he was fine and his wife would say that he was getting tired. His stutter was variable. His mood was difficult to gauge, rather flat, he mumbled, there was the odd flash of humour.”

[46]At section 7 of his report dated 3 November 2009 Dr. Powell summarised the results of previous testing of Mr. Turner:- “I have noted above the result from West Kent in early 2007. No deterioration in intellect or memory or executive function was thought to be evident. Some variability in test performance was felt to be due to psychological factors such as fatigue. He was borderline on a test of effort (in fact technically it was a fail). He had previously performed very poorly on the MMSE and the Minnesota Cognitive screen.” He had previously performed very poorly on the MMSE and the Minnesota Cognitive screen.”

[47]Dr. Powell set out the results of his own tests administered to Mr. Turner at section 9 of his report dated 3 November 2009. It is enough for present purposes to notice some of Dr. Powell’s conclusions on the basis of the tests:- “9.5 Summary of intellectual status There is no evidence of intellectual loss in the sense of reasoning ability. His working memory scores can be weak in the context of weak effort on memory tests, and he can be slowed down by his motor problems and stammer. … 9.6 [Memory, including Test of Memory Malingering (“TOMM”)] He failed the WMT (failure on any one section is an overall fail) and his performance on the TOMM was very similar to that in 2007 when it was described by his treating psychologist as borderline. The impression is of variable, weak effort, but not clear cut deliberate underperformance. 9.11 Executive skills … He was average on one part of Verbal Fluency in spite of his stammer. On the Hayling he was average on the most challenging part. He was normal on Cognitive Estimates. Overall, the results at [sic] satisfactory at his best.”

[48]At paragraph 11.8 of his report dated 3 November 2009 Dr. Powell identified this point:- “The issue arises as to whether there is any deliberate illness behaviour for the purpose of gain. I do want to see the material listed in 11.6 above but my impression is that his quality of life is now very much reduced and it is difficult to see why he should have deliberately chosen to present as he does, unless anything new emerges, though it has to be said that he does not seem to be depressed even though his state would seem to be dire.”

[49]Dr. Powell was asked to reconsider his opinions in the light of additional information, including viewing the video films. He made a supplementary report dated 18 December 2009. In a section entitled “Further Opinion” Dr. Powell said, so far as is presently material:- “In 11.8 of my report of 3.11.09 I raised the issue of whether he could have deliberately chosen to present as he does. The use of the wheelchair when he came to see me would seem to be a piece of theatre, and most probably a deliberate choice to present as very disabled. He cannot claim it was a bad day because when he got home, after still more travelling, he walked off on his crutches. The surveillance evidence also suggests that the crutches are not needed as much as he claims. Given the surveillance evidence, the whole picture may be fabricated. If there is any element of genuine pain and difficulty coping, then what he is seen to be able to do on the surveillance evidence suggests that there is a reasonable level of mobility that could be built up in further treatment. I have real concerns about providing any intensive treatment, as this will just reinforce any inappropriate/maladaptive beliefs. He must not be reinforced with any inappropriate levels of care and I am concerned that the Case Manager has not taken on board the need to reduce inappropriate levels of care and aides [sic].”

[50]In his oral evidence Dr. Powell very helpfully expanded upon his views. He explained that there were really two aspects of Mr. Turner’s alleged disabilities. One was the physical. The video films, Dr. Powell pointed out, only really enabled one to form a view as to the physical aspect of Mr. Turner’s supposed condition. The other aspect of Mr. Turner’s alleged disabilities was his cognitive skills. Dr. Powell said that when given the Cognitive Assessment of Minnesota on 27 February 2006 at King’s College Hospital Mr. Turner had scored poorly, at the level of a person suffering from Alzheimer’s Disease. In his report dated 3 November 2009 Dr. Powell had summarised that performance as, “he was not oriented to hour or time of day, was unable to repeat three words, could not recall 3 words over a short period, could only identify 4 out of 5 coins, could not do simple arithmetic, could not do a maze task, poor problem solving”. That, Dr. Powell told me, was in marked contrast to how he had seen Mr. Turner perform in court during this trial.

[51]Dr. Powell formed his view of Mr. Turner’s performance during the trial based on seeing Mr. Turner cross-examined for less than half a day on the first day, and then seeing and hearing Mr. Turner cross-examine other witnesses on the day Dr. Powell himself gave evidence. I, obviously, had the opportunity to see and hear Mr. Turner every day of the trial. Dr. Powell’s conclusions as to how Mr. Turner conducted himself at the trial coincided with my own.

[52]The most important features of Mr. Turner’s conduct during the trial which were relevant to the critical issue whether he genuinely suffered from conversion disorder were his ability to concentrate; his ability to understand questions put to him and to answer such questions appropriately; his ability to communicate effectively; and his ability to identify, and to deploy, relevant arguments. I have to say that in all of these areas I considered that Mr. Turner’s performance was good, if not outstanding.

[53]A courtroom is an intimidating place for those not accustomed to operate in it. Acting as a litigant in person involves engaging in an unfamiliar environment, with often strange rules. It must be stressful for anyone. Nonetheless, in my judgment, Mr. Turner, with the assistance of his wife and his mother, coped very well with the task which he had assumed. At one point the question arose whether, pursuant to the provisions of Legal Services Act 2007 Schedule 3 paragraph 1(3)(b), I should grant permission to Mrs. Turner to present the case of Mr. Turner. How the issue arose was explained to Mr. Turner. The matters relevant to whether he should present his own case, with the assistance of his wife, or she should present his case for him, were identified. Mr. Turner made his decision, quickly after the issues were made clear, that he wanted to represent himself, with the assistance of his wife. It was a rational decision, and one which, with the benefit of hindsight, can be seen to have been based on a sound appreciation of what the presentation of the case involved. I have no reason to suppose that Mrs. Turner could have presented her husband’s case better than he did, with her assistance.

[54]For a variety of reasons, none of the days of the trial was a full day. The longest day was the fourth, which began at the usual time and continued until about 3.30 p.m. However, the fourth day was the day upon which the task of Mr. Turner was to cross-examine expert witnesses called on behalf of MIB, so it was a testing day. However, Mr. Turner was able to play a full role in cross-examining such witnesses. He did not fall asleep. He did not lose the thread of the evidence. He did take a good point against Dr. Foster, and forced the point home. That point arose in this way.

[55]One answer to the case of MIB that he was a malingerer which Mr. Turner advanced arose out of a letter dated 15 May 2009 written to Mr. Turner’s general medical practitioner, Dr. Pile, by Mr. Naseem, an Associate Specialist in the Department of Urology at Medway Maritime Hospital. The letter said:- “This gentleman was reviewed following his urodynamic studies which suggested low pressure/low flow without any reflux. No upper tract changes are shown and a flexible cystoscopy was normal. His urinary incontinence is not that severe and he manages by change of clothes. He has to strain to pass urine and it does take a long time to empty his bladder. These findings suggest hypotonic detrusor secondary to his nerve injury. Residual urine after micturation [sic] today was 135 ml. I have advised intermittent self catheterisation and I am arranging a teaching session with Claire Kelly, Urology Nurse Practitioner, in the near future.”

[56]Mr. Turner contended that, if he were a malingerer, he would be unlikely to become engaged in a distressing and humiliating procedure like self-catheterisation. That was a point well made. Dr. Jacobson accepted that self-catheterisation was not something one would ordinarily expect of a malingerer. Mr. Turner also made something of the fact that the letter dated 15 May 2009 had not found its way into the trial bundle. He contended that the letter had been omitted because MIB had wished to deny him evidential material which supported his case that he was not a malingerer. From his perspective that contention was a good point, and identifying it, and making it forcefully, showed, as it seemed to me, a good awareness on the part of Mr. Turner of points in his favour at the trial, and how to deploy them.

[57]As the possible relevance of the issue of self-catheterisation appeared to come rather late to MIB, Dr. Foster was asked in his oral evidence to comment upon it. He told me that there was no evidence that Mr. Turner had suffered any physical injury in the accident on 11 December 2005 which would have had urological consequences. That, I think, Mr. Turner did not contest. However, Dr. Foster went on to say that some of the drugs which Mr. Turner was taking affected the operation of the bladder, and it was possible that Mr. Turner’s apparent bladder problems were caused by taking those drugs, or by a problem which developed independently of the accident on 11 December 2005. Mr. Turner’s counter to that evidence was to challenge the competence of Dr. Foster to speculate in this area, he being a neurologist, not a urologist. Again, it was a point well made, but identified and deployed as the evidence of Dr. Foster was being given. In other words, it showed, as it seemed to me, a rational mind operating quickly, albeit possibly with some help from Mrs. Turner. The brain which made and pursued the point was not that of a man whose cognitive functioning was at the level of a patient suffering from Alzheimer’s Disease, and who could not remember the correct name of the Prime Minister or the day of the week.

[58]The case of Mr. Turner as set out in the latest Schedule of Loss included the contention that his alleged urinary problems were a consequence of the accident on 11 December 2005. There was no evidence to support that contention and I reject it.

[59]Another example of what seemed to me to be a good appreciation on the part of Mr. Turner of how best to present his case concerned the viewing of the video films. On the first day of the trial Mr. Worthington explained that, although I had indicated that I had, as bidden, watched the films, he wished to show them again in court for the purposes of cross-examination. Mr. Turner objected that that was unnecessary, because he accepted that it was he in the films doing what he was shown doing, and viewing the films again would just be a waste of time. He was rather insistent on the point, and I formed the view that his stance was a deliberate attempt to downplay the significance of the films. Again, from Mr. Turner’s point of view, it was an entirely rational, indeed sensible, aim to seek to divert attention from the films.

[60]Apart from Mr. Turner’s curious mode of speech there was nothing in his presentation of his case at trial to suggest that he actually suffered, whether by reason of some psychological condition or otherwise, from some cognitive difficulty. Indeed, I thought that the way in which Mr. Turner expounded his case would have done credit to any inexperienced litigant in person.

[61]In court, unlike in meetings with Dr. Jacobson and Dr. Powell, Mr. Turner did not mumble. He spoke firmly and clearly. I had no difficulty in hearing or understanding what he said. He had an unusual stammer, but, strangely, his speech seemed to become more fluent when he was under pressure, as he was during cross-examination on the first day of the trial. Mr. Worthington, quite properly, put to Mr. Turner a number of documents relating to Mr. Turner and his past history in which it appeared that that past history had not been entirely accurately recorded. Mr. Turner at once perceived that what lay behind the line of questioning was the suggestion that he had told lies. He reacted to that underlying suggestion by firmly rejecting it, even, perhaps, becoming somewhat aggressive. At the same time the stammer appeared to become less pronounced.

[62]At the opening of his case at the trial Mr. Turner seemed to become distressed. That also appeared to be the position at the commencement of the second day. However, thereafter each day’s hearing commenced without apparent emotion on the part of Mr. Turner.

[63]On the first day of the trial Mr. Turner sat on the bench in the front of the courtroom and, when the time came for him to start his evidence, he walked, using crutches, to the witness box. He took the oath standing, supported on crutches. On the second day of the trial, when his cross-examination was supposed to resume, Mr. Turner at first refused to return to the witness box, or to participate further in cross-examination. The first part of the day was lost, partly because I decided that it was appropriate for the parties to investigate a possible conclusion not involving a decision of the Court. Mr. Turner agreed, after the short adjournment, to continue being cross-examined, but contended that he was unable to return to the witness box. His cross-examination therefore proceeded with him sitting in a wheelchair. He continued to use the wheelchair for the remainder of the trial, although he did stand on the last day at the sitting of the Court, supported on crutches.

[64]Intermittently during the course of the trial, when giving evidence, asking questions, or making submissions, Mr. Turner appeared to become upset. Usually this happened when he made reference to his children. Occasionally he made a comment to the effect that his life was not worth living, or that he should bring it to an end. Whenever Mr. Turner appeared to become upset his mother, sitting beside him, herself became distressed and anxious to calm her son. With that comfort, Mr. Turner appeared swiftly to recover his composure.

[65]Having seen Mrs. Jordan not only giving evidence, but also helping Mr. Turner in the presentation of his case, and caring for him in court, I am confident that she believes that Mr. Turner suffers in the way he complains. However, for reasons which one can well understand, and sympathise with, I do not think that she adopts a sceptical approach to that of which Mr. Turner speaks. It seemed to me that Mr. Jordan, also, was not a dispassionate observer, and largely took at face value what Mr. Turner told him.

[66]Unhappily I did not form the same impression of Mrs. Turner. Mr. Worthington pointed out in his closing submissions that if, which, of course, MIB did not accept, Mr. Turner suffered from conversion disorder, and that that was the cause of him believing that he suffered from various conditions for which there was no organic justification, the same could not be said of Mrs. Turner. That was plainly correct. It was obviously possible, in theory, that she was an uncritical wife, who accepted what her husband told her, but if she gave evidence of that which she knew was not true, the explanation was dishonesty, not some psychological condition. In the case of Mrs. Turner a principal focus of the attention of Mr. Worthington was her failure to explain to Dr. Foster, Dr. Jacobson or Dr. Powell that the condition in which Mr. Turner presented to each of them was not his invariable condition. That focus became even sharper in relation to the visit to Dr. Powell on 10 September 2009. In respect of that occasion Mrs. Turner knew perfectly well that her husband had got into the taxi at home with crutches, and had not used a wheelchair to reach the taxi. She was involved in the extended problem of getting Mr. Turner in his wheelchair up the small steps into Dr. Powell’s consulting rooms. She was aware that when Mr. Turner got home again he got out of the taxi without difficulty and entered his home with crutches. Unsurprisingly Mr. Worthington asked Mrs. Turner in cross-examination what that was all about. Mrs. Turner’s answers were most interesting. She answered by reference to herself, and not by reference to her husband or his supposed needs. She said that it was she who told him to stay in the wheelchair. She had been told that the tests which Dr. Powell was to administer would take three to four hours and was concerned that Mr. Turner would become tired. Then, she told me, if she had anything to hide, she would not have let Mr. Turner use crutches when he went to visit Dr. Denman. Mrs. Turner said to me that it was her decision for Mr. Turner to stay in the wheelchair when visiting Dr. Powell, and “What would I have to gain from exaggerating”.

[67]It seemed to me that Mrs. Turner is a strong character, and not the sort of woman who would meekly accept her husband being seriously disabled on a long-term basis unless she believed that his condition was genuine, or she considered that it was to the benefit of both of them that he should appear to be in a dire state which she knew was not real. I am afraid I reject as simply incredible the explanations of Mrs. Turner about the visit to Dr. Powell with Mr. Turner not leaving his wheelchair. He proved by his decision in court to act on his own behalf, and not have his wife present his case for him, that he was quite capable of taking a decision affecting his own interests which did not coincide with his wife’s views. There was not a scrap of evidence that Mr. Turner was inclined to defer to his wife’s views in relation to any matter. For her to pretend that she took the decision for her husband to stay in the wheelchair borders on the preposterous. The truth, I am afraid, is that both Mr. Turner and Mrs. Turner knew perfectly well that the object of the exercise of visiting Dr. Powell was to seek to mislead him, as they had both sought to mislead other medical practitioners, into thinking that Mr. Turner was in a very poor condition.

[68]I have made the observations which I have about how Mr. Turner, in my assessment, appeared in the video films which I watched and how he behaved in court during the trial, for example over using crutches at the start, but then taking to a wheelchair; seeming to become upset; and how he dealt with cross-examination, not with a view to causing distress to anyone but because, as just about everyone who spoke during the trial pointed out, it fell to me to determine whether Mr. Turner was, as it was delicately put by Dr. Denman and Dr. Jacobson, “reliable”. In other words, it was my function to decide whether Mr. Turner was telling the truth about how he had been affected by the accident on 11 December 2005 between then and now. As a part of that function I had not only to reach a conclusion, but to explain how and why I had decided as I did. From the perspective of his claims in this action, I was impressed by Mr. Turner’s conduct of the trial in all the wrong ways, namely that it was a very competent performance and not at all consistent with the disabilities in cognitive function of which Mr. Turner complained on other occasions. I formed the firm view that the occasions upon which Mr. Turner appeared to become upset were in fact carefully orchestrated to attract the sympathy at least of Mrs. Jordan, if not of the Court. It seemed to me that the ostensible deterioration from use of crutches to use of the wheelchair during the course of the trial was in the same category. It was obvious from considering the activities of Mr. Turner shown in the video films that in fact his physical abilities greatly exceeded what they had been represented to Dr. Foster, Dr. Jacobson, Dr. Powell and various treating doctors to be. The result of my assessment of Mr. Turner was that I did not feel that I could rely on his evidence in relation to any matter which was in dispute.

[69]For the reasons which I have explained, I was not impressed by Mrs. Turner as a witness of honesty and truth. It seemed to me that she and her husband were together seeking to mislead not only the medical practitioners whom they saw, but also the Court. Thus I did not feel I could rely on the evidence of Mrs. Turner.

[70]I was impressed by Mrs. Jordan as a compassionate, caring mother, but not, I am afraid, as an accurate and dispassionate observer of her son’s condition from time to time. In short, in my view he has misled her. He has also misled his step-father.

[71]The remaining witness called on behalf of Mr. Turner, Dr. Denman, in terms left it to the Court to decide whether the evidence of Mr. Turner as to his alleged sufferings since 11 December 2005 should be accepted.

[72]I was impressed by each of Dr. Jacobson, Dr. Foster and Dr. Powell. I am sure that each was doing his very best to assist the Court by his evidence, and I did find the evidence of each of them of great help. I accept the evidence of each without reservation.

[73]In the circumstances Mrs. Conradie was rather deprived of the opportunity to have much impact on the live issues in the trial. However, she seemed to me to be a very sensible, and extremely experienced, assessor of care needs, and her conclusion that Mr. Turner had no continuing requirement for care of any kind I found unassailable.

[74]As Mr. Worthington reminded Mr. Turner at the beginning of his closing submissions on behalf of MIB, it was for Mr. Turner to prove his case by evidence, and the burden of proof was on the balance of probabilities. In the light of my rejection of the evidence of Mr. Turner and that of his wife, and my findings that none of the other evidence from witnesses called on behalf of Mr. Turner could be relied upon to shed light on any critical issue, if there were no more evidence before me the case of Mr. Turner that he suffered from conversion disorder would simply fail for want of proof that that had been the position at any stage.

[75]Happily for Mr. Turner, there was other evidence on the basis of which I felt able to take into account, in assessing the damages to which he was entitled as a result of the injuries which he sustained in, or as a result of, the accident on 11 December 2005, an element in respect of conversion disorder and the repercussions of that disorder as suffered by Mr. Turner.

[76]Dr. Jacobson and Dr. Denman agreed, in paragraph 15 of the Joint Statement, that the contemporaneous medical records indicated that Mr. Turner did develop a conversion disorder following the accident and before the hernia operation. The way in which they put it was that, “The index event probably caused an initially genuine Conversion Disorder”. Neither of them really made clear what features noted in the medical records between about 11 December 2005 and about 13 January 2006 indicated a conversion disorder. However, it did seem from the contemporaneous records that the intensity of the symptoms complained of did change after the hernia operation.

[77]In a letter dated 9 February 2006 to Dr. Pile, Dr. Robert Hadden, consultant neurologist, wrote, so far as is presently material:- “I first saw this 33-year-old man as an inpatient ward referral on 16 January 2006. He had had a relatively mild road traffic accident on 11 December 2005. He was a passenger. His wife was driving. The car was stationary and was hit by another on-coming car at possibly 70 mph. She sustained only a mild whiplash injury. Afterwards he was stunned and in pain. CT brain scan and MRI scan of the neck were apparently normal. He sustained a right inguinal hernia which was surgically repaired on 12 January 2006. I think the operation was not felt to be urgent but it was expedited because he was disabled by so much pain. Subsequently his general pain and walking worsened after the operation. He had twitching movements, worse on the left side and worse when walking. He generally shudders a lot. He forgets his train of thought. He can’t get his words out. His wife says the twitching continues in his sleep. Initially the left leg was worse, now the right is worse, presumably because of the surgery. He had been slowly improving until the hernia surgery, then worsened again. He has also had nausea and vomiting and OGD on 12 January showed a possible ulcer at the gastro-oesophageal junction which has been biopsied. My examination on 16 January showed his speech initially seemed to be normal and then became much worse following an attempt at walking. He had irregular myoclonic twitching of all 4 limbs, sometimes bilaterally synchronous. There was some give-way weakness in the left leg but otherwise normal power throughout on the bed with encouragement and normal reflexes, but attempted walking with a zimmer frame led to a severe functional gait with breathlessness, sweating, walking with knees and hips flexed and taking most of the weight on his arms. He could only walk a few steps with great effort and when he got back on the bed was much worse and had more twitching and speech disturbance. He was discharged home on my advice with a referral to the community rehab team and has indeed slightly improved but not as much as hoped. I therefore reviewed him urgently in clinic today, on 6 February. He has good and bad days and today was a bad day. On a good day his speech is more fluent but not quite normal. He is never able to walk without 2 crutches, though no longer needs a zimmer frame. He still complains of a headache. He is generally a bit confused and forgetful. His eating is still poor and he vomits after almost every meal. He still has chronic pain in his neck and lower back for which he is taking Co-Codamol, Diclofenac, Paracetamol and Omeprazole. He feels his left side is a bit worse. The right inguinal hernia site is still numb and pulls but is not actually painful. On examination he had great difficulty speaking. He was very hesitant with a stammer and tended to repeat words, such as “I got rid of the frame, frame, frame”. He had poor eye contact. He was generally very tremulous. Cranial nerves were normal. Cough and phonation were normal. Sitting in the chair the power in all 4 limbs was normal with normal reflexes, but when he attempted to walk he was initially very stooped and taking most of the weight on his crutches. However, with encouragement he was able to walk 2 steps without the crutches, only holding onto my arms very gently before he collapsed back into the chair. I have explained to him that I think he has a functional disturbance of his speech and walking. This means that there is a problem with the coordination and linking together of all of the different parts of the brain and nervous system, although I do not feel there is any problem with any one individual part. This is a bit like a car engine being out of tune and not running on all cylinders. He has certainly lost his confidence and been quite shaken by the combination of the accident and the pain and the hernia operation, for somebody who was previously so fit and in the TA. He is actually putting in too much effort when he tries to walk and this is really counterproductive because it prevents him from using his muscles in a normal relaxed fluent way. A functional problem means there is a problem with function without any structural abnormality.”

[78]The picture painted by that letter of Dr. Hadden, written very shortly after Mr. Turner was discharged from hospital after his initial admission following the accident, was that Mr. Turner had developed symptoms of conversion disorder following the accident and before the hernia operation, but, prior to the operation, he had been making a slow recovery from those symptoms. The hernia operation then caused regression and the symptoms became worse. In cross-examination Mr. Turner himself told me that his symptoms got worse after the hernia operation. That seems to have been consistent with the contemporaneous view of Dr. Hadden.

[79]Two letters written by doctors concerning Mr. Turner to his general medical practitioner in April 2006 suggested that in fact Mr. Turner only started to experience the symptoms of what was diagnosed as conversion disorder after the hernia operation.

[80]The first of these letters was written by Dr. Brock, Senior House Officer of Dr. Bird, consultant physician at Maidstone Hospital, to Dr. Pile, and was dated 5 April. That letter included:- “This 33 year old gentleman was transferred from Kings [sic] College Hospital in London back to Maidstone for rehabilitation. In December 2005 he had been involved in a road traffic accident and after this he was admitted to Maidstone Hospital with minor injuries. During this admission he had an inguinal hernia repair and after this he started having neurological symptoms. These manifested themselves as disturbance of speech, writhing movements of his body, restlessness, reduced memory and weakness mainly on the left hand side of his body. He was reviewed by Dr. Hadden on this admission and following discharge from Maidstone he required admission to Kings’ [sic] College Hospital under the care of Dr. Hadden due to worsening of his neurological symptoms. At Kings’ [sic] College Hospital he had an MRI of his brain and EEG, neurophysiology and multiple blood tests. A diagnosis of conversion disorder was made when all of the above investigations were normal. On his return to Maidstone Mark still had significant neurological disturbance and was also troubled with excessive vomiting on trying to eat anything, mainly solid foods. In view of this he had an OGD and a barium follow through which were both normal. Mark has worked very hard with the physiotherapists and has made very impressive improvements with his speech and his mobility. His vomiting was certainly better with the help of some Lorazepam sublingually prior to eating. Both Mark and his family have questioned the diagnosis of a conversion disorder and feel that there are a number of reasons why this may not be correct. They were concerned that the weakness was only down the left hand side. They have done a significant amount of their own research on the internet and could not fit Mark’s symptoms with the descriptions that they read. Dr. Hadden reviewed Mark again whilst an inpatient on the 22nd of March and was happy with his progress. He explained again to Mark that his diagnosis is of a conversion disorder and that this disorder can present in the way that Mark has. Mark was also concerned that the nerve conduction studies performed at Kings’ [sic] were tested on his right side where it was his left side that was more affected. You will no doubt receive a copy of Dr. Hadden’s full assessment in which he has arranged for nerve conduction studies to be performed on the left at Preston Hall. On discharge Mark was keen to seek a second opinion regarding his diagnosis. Dr. Hadden advised that he should be referred by yourself as an independent doctor to a neurologist of your choice.”

[81]The referral was in fact to Dr. Chris Thom, consultant physician. His wife, Ruth, was a partner in the practice of Mr. Turner’s general medical practitioner, so she wrote the letter of referral, and received the reply, dated 12 April. As was recorded in the letter dated 12 April, Dr. Chris Thom actually saw Mr. Turner, and, presumably, the history he recorded in his letter he obtained from Mr. Turner and/or Mrs. Turner. At one point in his cross-examination Mr. Turner appeared to be suggesting that Dr. Chris Thom had prepared his assessment simply based on existing records, and that he had not met Mr. Turner. However, later Mr. Turner did accept that he had actually spoken to Dr. Chris Thom. The letter dated 12 April 2006 included:- “Thank you for asking me to see this 33 year old man who has become disabled following a road traffic accident last December. Before then he was perfectly fit and well. He is a former regular soldier who carried on in the Territorial Army. He was working as a senior manager in a timber company. The accident involved a head on collision. He suffered extensive bruising to his neck, back and left knee. He struck his head on the windscreen and was possibly concussed. He was admitted to Maidstone Hospital and remained there for about a month. He seems to have made a good recovery. His mobility remained limited by pain in his back and left knee. At this stage there were no cognitive problems, no speech difficulty and, I believe no focal neurological problems. At the end of his inpatient stay he had a right inguinal hernia repair under general anaesthetic. He seems to have deteriorated dramatically after this. When he went home a couple of days later he was largely bed and chair bound, requiring help to transfer. He spoke very little and when he did so it was quiet, slurred and repetitive. He had multiple episodes of vomiting. He had weakness throughout his left-hand side and abnormal sensation throughout the left-hand side. After a month at home he was admitted to Kings [sic] College Hospital for neurological investigation. He had a number of tests, including an MRI of the brain, an EEG and somatosensatory evoked potentials of the upper and lower limbs, all of which were reported as normal. The diagnosis of a conversion disorder was suggested. He was transferred back to Maidstone Hospital where he spent a further two weeks, before going home about three weeks ago. Although he has improved considerably since January, he feels that his progress has now stalled. He has persisting left-sided weakness and altered sensation. Although his speech is much improved, he still has times when he finds it very difficult to articulate. He lives with his wife and two children, aged 11 and 8, in a two-storey house. He was unable to get up and down stairs in January but can now do so with a struggle. He remains on sick leave from his job. He is extremely concerned that he is going to lose this and is worried about his financial future. He is a non-smoker and drinks little alcohol. On examination he looked well but very anxious. He hyperventilated intermittently during the consultation. Initially his speech was quiet but it became much stronger more or less to a normal level, later in the consultation. Although I did not assess him formally, there was no evidence of cognitive impairment. He made no dysphasic errors. He was not dysarthric. His optic fundi were normal. He appeared to have a small area of homonymous field loss in the left inferior quadrant. Visual fields were otherwise full. His eye movements were full. His facial expression was rather limited but there was no symmetry of movement. Examining the limbs, bulk and tone were symmetrical. He had weakness of the arm and leg, maximal at the ankle where I graded power at 1 out of 5 with power 3 – 4 out of 5 elsewhere. There was quite marked inconsistency of power on different occasions. His tendon reflexes were brisk and symmetrical. Both plantar reflexes were flexor. Truncal control in sitting and standing was normal. Sensation was subjectively altered over the left-hand side but was present throughout. He stood and walked independently using two crutches with a tendency to drag the left leg. He was in sinus rhythm and had a blood pressure of 118/76. His heart sounds were normal and there were no carotid bruits. Mr. Turner wanted me to tell him that he had a stroke, partly because this would have given him a satisfactory explanation for his symptoms and partly because it would potentially have activated his critical illness insurance. However, the medical evidence, and in particular the normal MRI brain quite clearly cannot sustain this diagnosis. I have no doubt that his road traffic accident and subsequent injury were the initiating factors for his current condition but extensive investigation has failed to establish and [sic] organic link between the two. Accordingly I can only agree that a conversion disorder is probable. I discussed this with him at some length. He told me that he could not really accept the diagnosis of conversion disorder because he has always coped well with stress. However, I tried to explain that a conversion disorder is not the same thing as a post-traumatic stress disorder.”

[82]While Mr. Turner contended, correctly, that it was possible for people to make mistakes, it is, I think, significant that each of two doctors independently recorded, less than three months after the hernia operation, that Mr. Turner started having neurological symptoms – the basis of the diagnosis of conversion disorder – after the hernia operation. At one point it was contended on behalf of MIB that that evidence indicated that Mr. Turner’s claim, insofar as based on conversion disorder, failed on causation, the cause of the conversion disorder not being the accident on 11 December 2005, but the hernia operation. In his written closing submissions Mr. Worthington did not pursue that contention. He said:- “68. There is some compelling evidence from what the Claimant said to various doctors that his functional problems only came on after the hernia operation on 13th January 2005 and were not present immediately after the accident on 11th December 2005.69. Mr. Scurr (General Surgeon) says that the hernia was not caused by but was simply brought to light as a consequence of the accident. …

70. On that basis there is an argument that if the Claimant has had genuine problems since January 2006 then these were caused by the hernia and not the accident.

71. The difficulty is that the only 2 experts who have produced a joint statement (Denman and Jacobson) have agreed that the Claimant’s alleged problems (genuine or not) are attributable to the accident on 11th December 2005. The issue concerning the hernia and causation was not explored at that time.

72. Moreover Dr. Denman said in evidence that there was [sic] some signs of a possible psychiatric problem between the accident and the operation.

73. For those reasons MIB does not pursue the argument that the Claimant’s case fails on causation.”

[83]It seems to me that that stance was realistic on the evidence. As I have noted, Dr. Hadden’s letter dated 9 February 2006 did indicate that neurological signs preceded the hernia operation, but that there had been a slow improvement prior to the operation. However, the fact that by April 2006 two doctors were recording that the neurological signs commenced after the hernia operation indicated, as it seems to me, that that was how Mr. Turner remembered the matter at that time. The source of the information recorded by both Dr. Brock and Dr. Chris Thom could only have been Mr. Turner and/or Mrs. Turner. Reference by either of these doctors to the medical records relating to Mr. Turner’s treatment after the accident and before the hernia operation would have revealed a more complicated picture. For the purposes of assessing the compensation to which Mr. Turner was entitled by reason of the conversion disorder resulting from the accident it was necessary to reach conclusions about how severe that disorder was and how long it was likely to have lasted, but for the supervening effects of the hernia operation. In that context Mr. Turner’s memory in April 2006 of his sufferings between about 11 December 2005 and about 13 January 2006 was plainly important. It suggested that the neurological symptoms antedating the hernia operation were, in comparison with how matters were after the hernia operation, not severe, and that, in turn, indicated that those symptoms were probably unlikely to have endured for any length of time.

[84]The final letter to which it is material to refer in the context of the psychological consequences for Mr. Turner of the accident on 11 December 2005 is that dated 25 March 2008 written by Dr. Bodani, consultant neuropsychiatrist, to Dr. Hadden. Mr. Turner was under the care of Dr. Bodani whilst he was at West Kent Neuro-Rehabilitation Unit, Sevenoaks, for about five weeks at the beginning of 2007. The material part of the letter was in these terms:- “I reviewed Mr. Turner at his home on 6th March 2008. His wife Louise was present. I last saw Mr. Turner at home on 5th April 2005 [the year is plainly an error – the correct year was 2007]. I note that Mr. Turner’s physical condition has changed little. Throughout the assessment Mr. Turner was seated on his couch, with crutches nearby and I note now that he has two lower limb callipers to help him walk. Mark continues to have variable stutter in his speech. He appears overweight and on this occasion Mark’s demeanour was less friendly than before and during the assessment he appeared very angry with doctors in general, but not you specifically, as he felt that you had been “straight with him”. The latter I took to imply that Mark accepted after seeing you that he was not going to recover from his disability. During Mark’s in-patient admission to West Kent Neurorehabilitation Unit various diagnoses for his functional disabilities were considered including medical unexplained symptoms, conversion disorder and malingering. At the time of his admission caution was exercised not to inadvertently label Mr. Turner with a psychiatric diagnosis, but concern was also expressed by the team about Mr. Turner’s motivation for adopting a sick role. When I comprehensively interviewed Mr. Turner both in clinic and during his admission my provisional hypothesis was that at the moment of impact of the vehicle in which he was travelling with his wife, with a head on crash with another vehicle, Mr. Turner may have experienced dissociation. He certainly appeared stunned, unable to talk coherently and move. The notable finding, however, was that there was no head injury or other significant physical injury. During the course of Mr. Turner’s further hospitalisation, in the course of which a hernia repair was carried out, his condition deteriorated, and he became disabled to the point at which he first presented to Neuropsychiatry. It is significant that during Mr. Turner’s admission to West Kent Neurorehabilitation Unit he was extremely guarded about professionals having access to members of his family, for example his wife, without his always being present. At that time the teams’ enquiries into any compensation issues were largely dismissed. In the year following, and today, as well as noting no neurological deterioration, and no improvement in Mr. Turner’s condition, I am also now more fully aware that there remains an outstanding financial issue with regard to critical illness benefit. I am not sure when this critical illness policy was taken out, or what it may pay out Mr. Turner, were he to be diagnosed with an incurable condition. All that I can say at the moment is that Mr. Turner remains ostensibly disabled and dependent, and that this is having a great strain on his family, his wife, and also his own self-esteem.”

[85]The contents of that passage again indicate that Mr. Turner suffered neurological symptoms after the accident on 11 December 2005 and prior to the hernia operation. Yet once more deterioration in his condition after the hernia operation was noted. However, it was clear, as it seemed to me, that Dr. Bodani was not altogether persuaded, in the light of his experience of Mr. Turner during his admission to West Kent Neuro-Rehabilitation Unit, that at that time Mr. Turner continued to suffer a genuine conversion disorder. Dr. Bodani plainly recognised that Mr. Turner’s professed symptoms might be referable to the financial benefits thought to be associated with permanent disability. In the light of my findings, Dr. Bodani was justified in his caution in accepting at face value the protestations of Mr. Turner as to his condition. The fact that Dr. Bodani had his concerns about Mr. Turner as early as the beginning of 2007, it would seem, prompted me to conclude that Mr. Turner had, by the time of his admission to West Kent Neuro-Rehabilitation Unit, recovered from the exacerbation of his conversion disorder caused by the hernia operation. That conclusion in its turn reinforced my view that the conversion disorder resulting from the accident on 11 December 2005 would have been of fairly short duration, but for the exacerbation by the hernia operation. Doing the best I can, I find that Mr. Turner would have recovered from the conversion disorder resulting from the accident, but for the consequences of the hernia operation, by about six months from the accident.

Assessment of damages

[86]In the light of my findings as to the injuries which Mr. Turner sustained as a result of the accident on 11 December 2005 it is possible to address the appropriate compensation to which he is entitled.

[87]Mr. Turner sustained a minor whiplash injury to his neck and back, minor damage to his left knee, and bruising and tenderness in some other areas of his body. The physical consequences of those injuries seem to have been overtaken by the exacerbation of the conversion disorder following the hernia operation, if they had not in fact resolved themselves prior to that operation. In addition to the physical consequences of the accident Mr. Turner suffered a minor conversion disorder which, but for the exacerbation as a result of the hernia operation, which was nothing to do with the accident, would have lasted about six months. In my judgment the appropriate general damages for pain and suffering, and loss of amenity amount to £5,000.

[88]It was accepted on behalf of MIB that Mr. Turner would, of necessity, have been away from work and unable to earn for a period after the accident. The evidence put before me demonstrated that Mr. Turner was in fact paid by his employers, Eleco Timber Frame Ltd. (“Eleco”), with which he had commenced employment as Business Development Manager – South on 10 October 2005, a net sum of £3,108.63 per month by way of salary and car allowance. Mr. Turner’s first payment from Eleco, covering the period 10 October 2005 to 31 October 2005, was of £2,236.04 net. He was paid his salary in full for the months of December 2005 and January and February 2006, and lesser sums thereafter until the month ending 31 July 2006. It was Mr. Turner’s case, and it was accepted on behalf of MIB, that under the terms of his contract of employment with Eleco Mr. Turner was potentially able to earn a bonus of up to £5,000 per annum and that, after three months employment, he was eligible to join the company pension scheme. Mr. Turner’s evidence to me was that he would have joined the pension scheme as soon as he was able to do so. Had he done so his net monthly pay from Eleco would have been reduced by the amount of the pension contributions. If one ignored the possibility of a bonus and the implications of joining the pension scheme, and assumed, which I think is generous, that the conversion disorder resulting from the accident, if not exacerbated by the hernia operation, would have meant that Mr. Turner would have been away from work for six months from 11 December 2005, his loss of income was the difference between the sum of £3,108.63 per month for the months of March, April, May and pro rata for the first ten days of June 2006, and the sums received in respect of those periods. The sums received were £982.94 for the month of March, £341.37 for the month of April, £240.46 for the month of May and £229.53 for the whole month of June. If one took the daily net rate of pay of Mr. Turner as £3,108.63 divided by 30 for the month of June, the pay which he would have received in the period 1 March 2006 to 10 June 2006 inclusive, had he worked, was £10,362.10. If the payment in fact made for the month of June was apportioned on the same basis as the lost income, namely divided by three, the amounts which Mr. Turner in fact received in respect of the period 1 March 2006 to 10 June 2006 inclusive, were £1,641.28. His loss was thus, arithmetically, £8,720.82. There was really no evidence as to the prospects of Mr. Turner earning a bonus, had he not been injured in the accident on 11 December 2005, or as to the implications in financial terms, had he joined the Eleco pension scheme. I propose to deal with those elements of Mr. Turner’s claim by applying a broad brush. I am confident that they are adequately taken into account if I round up the award in respect of past loss of earnings to £11,000.

[89]Mr. Turner claimed that, as a result of the accident, he had suffered a loss of pay which he would have received from his membership of the Territorial Army. A document of which a copy was put in evidence was an Army Form B 200 (ADP), entitled “Soldier Record of Service”, completed in relation to Mr. Turner. That document recorded that Mr. Turner, Army Number 25013363, had enlisted as a Sapper in 221 Field Squadron, Royal Engineers, on 9 March 1999. However, it also recorded that the reason the form had been issued was “Discharge”. The “Discharge Details” given were that Mr. Turner had been discharged on 6 December 2005, before the accident, “at his own request”. Mr. Turner disputed the contention that he had been discharged prior to his accident, but he was not able to explain why his record included the information that he had been. In the face of the record I am not satisfied that Mr. Turner suffered any loss of pay from the Territorial Army as a result of the accident.

[90]Another element in the claims of Mr. Turner was past travel costs. The evidence in support of such costs was thin, but MIB offered £500 in respect of this head of claim. That seems to me to be generous, but I am disposed to include that amount in favour of Mr. Turner in the overall calculation of his damages.

[91]There was a claim by Mr. Turner for what was described as “Past Property Damage”. Apart from a claim for £10,000, said to represent the difference between the value of the Jaguar motor car in which he was sitting at the time of the accident and the amount paid by Mr. Turner’s insurance company, the items in question came to £445. MIB was disposed to agree compensation in that sum in respect of the items to which they related. However, it was not minded to agree the claim for the alleged difference between the value of the Jaguar motor car and the amount paid out by Mr. Turner’s insurance company. Mr. Worthington submitted, rightly in my view, that if Mr. Turner disputed the assessment of the value of the Jaguar motor car made by the insurance company, he should have contested that point with the insurers. Not having done so, the sum paid was the best evidence of the value of the motor car. Certainly there was no expert evidence before me that the motor car had been worth any more than the sum at which the insurance company had valued it.

[92]The Schedule of Loss prepared by Mr. Turner included a section entitled “Past Care and Support”. There was evidence that Kent County Council had provided sums to Mr. Turner to enable him to pay for care to be provided to him. Initially that care was provided by Mr. Jordan, his step-father. Subsequently, after an apparently unsatisfactory experience with a non-family member carer, care has been provided by Mr. Turner’s step-sister, Emma Jordan. No claim was made in respect of the costs actually met by Kent County Council. However, a claim was made in respect of the alleged gratuitous care provided in addition to that paid care by Mrs. Turner and other members of the family. I am not satisfied on the evidence that Mr. Turner needed any so-called gratuitous care at any stage as a result of the consequences of the accident on 11 December 2005, so this element of claim fails.

[93]The final elements of alleged past loss included in the Schedule of Loss were in respect of past accommodation and adaptations, past aids and equipment, past medical treatment, past increased fuel and utility bills and past do-it-yourself and decorating. These claims can be dealt with shortly.

[94]Mr. Worthington in his written closing submissions at paragraph 68 said:- “MIB would accept liability for crutches for a period after the accident (£100) and some increased utility bills for 1 year (£250) but that is all. The other claims are not attributable to the accident and, in any case, are either not documented (property adaptations) or are claims in respect of monies that have not been spent (eg. gardening).”

[95]I accept the submissions of Mr. Worthington that none of the elements of claim under the heads I have mentioned were demonstrated on the evidence to be consequent upon the accident on 11 December 2005. His criticisms of the quality of the evidence were in any event well-founded. In the interests of proportionality it is appropriate to accept the offer of £100 in respect of crutches. However, the indication of £250 for increased utility bills was based on the assumption that I would find that Mr. Turner suffered conversion disorder for a year after the accident, but for the exacerbation as a result of the hernia operation, and I have in fact found that Mr. Turner would have recovered within 6 months. It is appropriate, therefore, to adjust the allowance in respect of increased utility bills to £125.

[96]It follows from the findings which I have already recorded that I am not satisfied that Mr. Turner will incur any costs in the future as a result of the consequences of the accident on 11 December 2005.

[97]The total damages to which I find that Mr. Turner is entitled come, therefore, to £17,170. Mr. Turner is entitled to interest on those damages. No doubt the appropriate sums in respect of interest can be calculated to the date this judgment is handed down.