Boyle v Thompsons Solicitors [2012] EWHC 36 (QB)

[2012] EWHC 36 (QB)Case No 0NE90048
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Date 27/01/2012
NEWCASTLE DISTRICT REGISTRY
The Law Courts, Quayside
Newcastle upon Tyne, NE1 3LA
Before
MR JUSTICE COULSON
Between
Maria BoyleClaimantThompsons SolicitorsDefendant
Mr Patrick Sadd (instructed by Irwin Mitchell) for ClaimantMr Edwin Buckett (instructed by Reynolds Colman Bradley LLP) for DefendantHearing Hearing dates: 16 th, 17 th and 18 th January 2012
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................MR JUSTICE COULSON
[1]INTRODUCTION As a result of an assault by her former partner on 21 October 2001, the claimant (whom I shall call “Mrs Boyle”, even though for much of the relevant period she was known by her former name of Maria Benazzi) made a claim to the Criminal Injuries Compensation Authority (“CICA”). Following a review of the original award, on 30 January 2003 the CICA made a final award in the sum of £5,150. Mrs Boyle instructed the defendant firm, and an appeal was lodged on her behalf. Although they had formed no part of her original claim, the principal issues in the appeal became the extent to which her Post Traumatic Stress Disorder (“PTSD”) was permanent (which meant that she could never work again), and whether the PTSD was solely due to the assault in October 2001. At the Panel hearing on 18 May 2006, Mrs Boyle’s appeal was rejected. Just a week later, on 25 May 2006, Mrs Boyle alleged negligence against the defendant.[2]Although there are a number of allegations of negligence, the essential point in this case is relatively straightforward. The material in front of the CICA Panel on 18 May 2006 included reports from Mrs Boyle’s treating psychiatrist, Dr Tomkinson, which stated in terms that the PTSD was both permanent and the direct result of the assault, and the more equivocal reports from her expert psychologist, Mrs Alison MacLaren, which suggested that the PTSD was not permanent and could not be solely attributed to the October 2001 assault. It is now submitted on behalf of Mrs Boyle that this conflict in the evidence should have been resolved by the defendant (in Mrs Boyle’s favour) prior to the hearing in May 2006, and that, but for the defendant’s negligence, the expert evidence adduced on behalf of Mrs Boyle at that hearing would have been considerably stronger. In consequence, it is said that her prospects of successfully recovering considerably larger sums by way of loss of earnings would have been increased, and that she has suffered a significant loss of a chance.[3]On behalf of the defendant, negligence is disputed: it is argued that the defendant had already gone back to Mrs MacLaren on two occasions to try to get her to strengthen her views, and that – in circumstances where her reports had to be provided to the Panel, whatever they said – it would have been too risky to try again. In any event, it is submitted that, even if the defendant had been negligent, it cannot be demonstrated that, but for that negligence, Mrs Boyle’s chances of success would have been increased (either at all, or by anything other than a negligible amount), so that the claim also fails as a matter of causation.[4]I deal with the issues in the following way. At Section 2, I outline the CICA Scheme of 2001. In Section 3, I set out in some detail the background to the allegations that are now made. In Section 4, I set out the run-up to the hearing in May 2006 and the decision of the Panel. At Section 5, I summarise the evidence called at this trial. Thereafter, at Section 6, I analyse the allegations of breach of duty, and at Section 7 I deal with the arguments as to causation. I address quantum matters at Section 8 below. There is a short summary of my conclusions in Section 9 below. I am grateful to both counsel for their clear submissions.[2]THE CICA SCHEME 2001[5]The CICA Scheme 2001 was introduced on 1 April 2001. It was designed to promote consistency in awards, by using a fixed tariff system which applied automatically. For some claims, discretion is almost entirely eliminated. It has been noted that the sums set out in the tariffs usually produce awards at a lower level than the previous regime.[6]‘Criminal Injury’ is defined at paragraph 8 of the Scheme as “one or more personal injuries as described in the following paragraph, being an injury sustained in Great Britain and directly attributable to…a crime of violence…” Paragraph 9 makes clear that such injury could include mental injury, which is defined as either “temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis”. The Scheme envisages that an applicant claiming compensation for a criminal injury would be dealt with by a claims’ officer, who is given considerable powers under the Scheme (see, for example, paragraphs 13, 16, 18 and 21 of the Scheme).[7]Compensation is broadly payable under two heads. There is the standard amount of compensation which is derived from the stated tariffs. In addition, where there are claims for loss of earnings, the detailed provisions in paragraphs 30-34 apply. These require the loss of earnings’ claim to be assessed by reference to particular tables, although the CICA retains the discretion to award lump sums instead.[8]Paragraph 50 of the Scheme envisages that an application for compensation would be determined by a claims officer, who then provides written notification of the decision. Under paragraphs 53 and following, that decision can be reviewed if the applicant so requests. Thereafter, in accordance with paragraphs 61-65, the applicant can appeal against a review decision. Paragraph 64 makes plain that, on appeal, “the standard of proof to be applied by the Panel in all matters before it will be the balance of probabilities. It will be for the appellant to make out his case…” The Panel (made up of three individuals, one of whom is medically-qualified) has a wide power to seek information and collate documents but the appellant may also provide such material as he or she desires for the purposes of the appeal hearing.[9]One other important feature of the Scheme concerns the applicant’s express duty to “give all reasonable assistance to the Authority” (paragraph 13(c)). A claims officer can reduce or even withhold in its entirety an award where he considers that the applicant has not given such assistance. That co-operation extends to disclosing “all medical reports obtained or to be obtained” on behalf of the applicant. An express agreement to this effect was set out in paragraph 3.5 of the original application form which Mrs Boyle, like all CICA applicants, completed and signed.[10]It seems to me that this disclosure obligation (which is, of course, very different to the situation that pertains in ordinary civil litigation), is both understandable and justified. I note that in their helpful book ‘Criminal Injuries Compensation Claims’ (The Law Society 2005), Clare Padley and Laura Begley say:
“It is suggested however (appreciating that this is a moot point in law) that if one has regard to the inquisitorial nature of the proceedings, and the nature of the application being made, there is a duty upon the applicant to disclose any documentation in his possession, custody or control which is relevant to the matters in issue. The Authority’s senior solicitor has commented in discussions with professional users of the scheme that since compensation is paid from the public purse, solicitors and applicants alike are expected to respect this and ‘play fair’. In particular, in cases where the treating doctor has already provided a report to the Authority, and the applicant then reverts to that doctor for a supplemental report, or poses questions to that doctor, the answers to which are unfavourable, then this report or those replies ought to be disclosed. In the absence of disclosure the application will be determined by the Authority or the Panel on a false or incomplete premise.”
I respectfully agree with that. And although the authors suggest that, theoretically, a different situation may exist in circumstances where an independent expert has been instructed without the Authority’s knowledge and whose reports may therefore be governed by the ordinary rules of privilege, that does not arise here (because the appointment of Mrs MacLaren was known to the Panel, from an earlier hearing in 2004 which I detail below). In any event, I am inclined to think that the specific agreement at paragraph 3.5 “to disclose all medical reports obtained or to be obtained” should (in this non-adversarial process, funded by the state) be taken to mean precisely what is says, thereby overriding any questions of privilege.[3]THE BACKGROUND[11]Mrs Boyle was born on 12 January 1958. The agreed medical history demonstrates that she has suffered from depression, off and on, since 1972. There were suicide attempts in 1985, 1988 and 1994, and other incidents of self-harm. Although Mrs Boyle worked as a nurse in the 1990s, it was apparent that she had considerable time off for stress-related illness and depression.[12]By about 1999, Mrs Boyle was involved in a relationship with a man called Adams. It appears that this relationship was abusive and Adams became progressively more violent towards her. There is a reference to an assault in late 1999, and subsequent assaults which became almost a weekly occurrence. Her medical notes for this period indicate (among other things) depression and a recurring knee injury. Mrs Boyle had lengthy periods off work in consequence.[13]The significance of the continued violence that she suffered in her relationship with Adams should not be understated. Thus, when Mrs Boyle first made a claim to CICA in 2002, she relied on her statement that “the abuse had been happening over a period of more than 2 years. On several occasions I had reported incidents to police and visited my doctor with injury.” Later, in March 2003, Ms Varty, the solicitor at the defendant firm with the day-to-day conduct of Mrs Boyle’s appeal to the CICA Panel, noted that her instructions were to claim “for a series of mental abuse and physical assaults by your former partner over a period exceeding 3 years.”[14]However, both Mrs Boyle and Ms Varty quickly became aware of the potential difficulties for the CICA claim created by the lengthy history of violence in her relationship with Adams. These difficulties were the subject of specific correspondence between them. The principal problem was that the earlier assaults did not give rise to criminal charges or police statements. As a result, they could not be the subject of a CICA claim. Only the assault in October 2001, which gave rise to both statements and charges, passed that threshold test. Accordingly, any mental injury suffered by Mrs Boyle arising out of the earlier violence could not give rise to a CICA claim. It was therefore important, for the purposes of Mrs Boyle’s CICA claim, for the October 2001 assault to be emphasised, and attempts made to play down the effect of the earlier assaults. Inevitably, that was not straightforward and this difficulty resurfaced regularly throughout the currency of the CICA claim.[15]It appears that Mrs Boyle suffered a back injury in August 2001. The medical notes said:
“partner pushed her; knows she should get out but can’t”
. It seems that as a result of this incident, she was off work. On 4 October 2001, a doctor at her practice made the following note:
“This lady works as a nurse. She has a very long history of domestic disruption and violence. She has recently split up with her partner and she may be entering into a period of greater domestic stability. She feels that she has been depressed for a number of years. She has had numerous excursions into counselling and anti-depressant therapy. At the present time she is on Trazodone. In the light of her symptoms and in the light of her previously somewhat irregular supervision of her mental state I would be most grateful for your expert assessment of her and your guidance as to how she is best helped both now and in the future.”
[16]This referral eventually found its way to Dr Tomkinson, the treating psychiatrist who has subsequently provided considerable support to Mrs Boyle over the years. However, before Dr Tomkinson was able to meet Mrs Boyle, she was the subject of a further violent assault on 21 October 2001. That assault marked the end of her relationship with Adams. It is that assault which formed the sole basis of her claim to CICA.[17]Mrs Boyle saw Dr Tomkinson in December and again in January. He produced the first of a number of reports on 6 December 2001. He described Mrs Boyle as having had “a very difficult time of things domestically and as a result has had what seems to be a relapse of her depressive illness.” In addition, during the early part of 2002, Mrs Boyle saw a consultant psychologist, Mrs Brennan. In her evidence, Mrs Boyle agreed that this was a “form of counselling”.[18]In March 2002, Mrs Boyle returned to full time work. The records appear to demonstrate that she worked full time from March to September 2002 and thereafter worked reduced hours until April 2003. The documents also show that, by December 2002, Mrs Boyle was no longer receiving any treatment from a psychiatrist or a psychologist. Despite that, her employers were still unhappy with her performance; the letter from her Ward Sister of 16 December 2002 complained that, “her sickness record is appalling”. Mrs Boyle agreed in her oral evidence that there were a number of different causes for her extensive sick leave.[19]Mrs Boyle made her claim to CICA on 29 April 2002, following her return to work the previous month. The claim document was based largely on the mental injury which Mrs Boyle said that she had suffered. It made no reference to any claim for loss of earnings. In his original decision, dated 10 October 2002, Mr John Gair, the claims officer, ruled that, in accordance with the tariff for mental injury, Mrs Boyle was entitled to £4,400.[20]It should be noted that at no time during the currency of the original claim did the medical evidence suggest that Mrs Boyle was suffering from PTSD. Dr Tomkinson, who provided a report to the CICA on 12 September 2002, made plain that he expected Mrs Boyle “to make a full recovery”. He ascribed her problems to the fact that “she has been a victim of physical and mental abuse from her partner on a number of occasions over 18 months on a 1-2 week basis often following heavy drinking on his part”. He made no reference to PTSD. This makes it even more curious that Mrs Boyle herself referred to suffering from PTSD in her answers to a questionnaire completed in the same month, which was more than a year before the first written record of that diagnosis by a doctor. It is difficult not to conclude that someone (maybe Mrs Brennan) had referred to it (whether in passing or as a tentative diagnosis, it is impossible to say), and Mrs Boyle had latched on to it as a complete diagnosis of the problems she was experiencing.[21]On 31 October 2002, Mrs Boyle requested a reconsideration of the award. It appears that this was largely based on CICA’s failure to award compensation in relation to the physical injuries suffered during the assault. That criticism was implicitly accepted by CICA, who increased the award to reflect her physical injuries to the sum of £5,150. The review decision was dated 30 January 2003.[22]Mrs Boyle was again unhappy with the award and instructed the defendant. Her notice of appeal was the first occasion a claim for loss of earnings was made and, even then, the claim was unquantified. Moreover, given that, in accordance with the Scheme, no compensation would have been payable for the first 28 weeks loss of earnings, and Mrs Boyle had gone back at work within the 28 week cut-off, the claim would probably have failed.[23]In April 2003, Mrs Boyle suffered a relapse, and was off work for over 6 months. During this period she nursed her dying father. There was a dispute as to whether this event was properly called a relapse. It seems to me that that is precisely what it was. Amongst other places where the word “relapse” was used to describe what happened in April 2003, there was Mrs Brennan’s summary of 20 August 2003; Dr Thomas’ letter of 8 September 2003; and Mrs Boyle’s own answers to the CICA questionnaire of 9 July 2003. Accordingly, I find as a fact that, having recovered by March 2002, Mrs Boyle suffered a relapse in April 2003 and that it was sufficiently serious to keep her off work until the following November.[24]It appears from the evidence that, when Mrs Boyle went back to work in November 2003, she only wanted to work the morning shift. In particular, she was nervous and anxious about working later in the evening. She indicated that she wanted to reduce her hours to 20 hours per week, although she also said that this would adversely affect her pension rights. I accept Mr Buckett’s submission, as trailed in his cross-examination of Mrs Boyle, that she appears to have decided that this was what she was going to do, even though, at the time, there was no medical report available which suggested that this was an appropriate or justified course. On the other hand, it is right to note that, by the late summer of 2003, a medical diagnosis of PTSD had finally been made by Dr Soliman.[25]In early 2004, a hearing was fixed before the CICA Panel in March. Originally that was going to be the hearing of the substantive appeal. However, it became apparent that the defendant was going to have to seek an adjournment on Mrs Boyle’s behalf, because there was no expert medical report dealing with her mental condition and her ability (or otherwise) to resume a full working life. In the documents sent out by the CICA Panel for that hearing, Mrs Boyle and the defendant were warned that, on the present material, the 28 week rule probably meant that there was no sustainable claim for loss of earnings. No further periods of absence from work had by then been identified. The document also pointed out that there was no schedule of loss.[26]Prior to the hearing, Ms Varty and the defendant had already resolved to obtain their own expert’s report. The expert identified was Mrs Alison MacLaren. She saw Mrs Boyle on 4 March 2004 and produced a report dated 8 March 2004, although that report was not available by the time of the hearing on 10 March. At the hearing itself, the application for a medical report from Mrs MacLaren was allowed, as was the application to put in a schedule of special damages. It was common ground that, by reference to various documents (including Mrs Brennan’s summary of June 2003), the Panel expressly asked that Mrs MacLaren deal with Mrs Boyle’s psychological history.[27]The MacLaren report dealt with Mrs Boyle’s psychological history and made express reference to Mrs Brennan’s summary. It expressly stated that it related to her claim for damages “in relation to an incident which took place on 21st October 2001”. In the final part of the report, Mrs MacLaren said this:
“15 Opinion and prognosis 15.1 Following the index incident, [Mrs Boyle] describes Post Traumatic Stress Disorder. This was especially severe for the first 6 months after the incident, but following treatment, the symptoms reduced. However, following the death of her father in May 2003 and difficulties at work, [Mrs Boyle] experienced a relapse and was re-referred to both psychology and psychiatry. She continues to receive treatment. 15.3 [Mrs Boyle] continues to experience a significant degree of symptomatology both as regards post traumatic features and mood related features. Some of the latter appear attributable to the loss of her father rather than the index incident. On current presentation, there is likely to be further reduction in symptoms as treatment continues. Whilst [Mrs Boyle] can be expected to show further improvement, she is now likely to be very vulnerable to further relapse in the face of traumatic or distressing events. 15.4 On current presentation [Mrs Boyle] is unlikely to manage a return to her pre-incident level of work for the foreseeable future. This incident has also rendered her very vulnerable to incidents involving conflict and it seems unlikely that she will regain her pre-incident ability to deal with such situations.”
[28]I find that this report was clear. It concluded that Mrs Boyle had suffered PTSD after the assault on 21 October 2001; that she had improved sufficiently so that she could go back to work, but had then suffered a relapse; that at least one other factor in her mental condition was the death of her father; that the prognosis was relatively positive although it was unlikely she could return to the same level of work as prior to the assault. In other words, Mrs MacLaren was saying that, although there was a claim for loss of earnings due to PTSD, it was not open-ended and could be measured in years, rather than representing a permanent condition and a permanent reason for Mrs Boyle no longer to work. As to causation, Mrs MacLaren was not saying that the sole cause of the PTSD was the assault in October 2001 because (amongst other things) of her various references to the death of Mrs Boyle’s father.[29]Mrs MacLaren was subsequently asked to clarify certain matters and purported to do so in her letter of 24 May 2004. She said that it was difficult to estimate how long it was likely to be before Mrs Boyle would be able to return to her pre-level incident of employment “especially in view of the confounding of effects with the loss of her father”. Accordingly, by reference to the tariffs in the CICA Scheme, Mrs MacLaren identified the relevant category as category 12, lasting 2 to 5 years. She said this was because “whilst she was showing signs of recovery within the 2 years, she would have been more vulnerable to the subsequent loss of her father because of the index events.” Again, this was helpful to Mrs Boyle (because it fixed the appropriate tariff category); the fact that it did not say that the PTSD was permanent and justified retirement was unsurprising, since – at least at this point – no-one had ever suggested such an outcome.[30]By this time, however, Mrs Boyle was again off work. The notes from the Occupational Health staff make clear that this was the result of two separate incidents at work. One involved a patient striking Mrs Boyle; the second involved the relative of a patient being verbally abusive to her. In her evidence, Mrs Boyle said that, as a result of these incidents, she felt that she could not tolerate violence or working with the public. It was clear that Mrs Boyle no longer wished or felt able to carry on working as a nurse and sought to retire on medical grounds. Again, she seems to have taken that decision some time before there were any medical reports which supported such a course. Furthermore, the Panel were told in June 2004 that Mrs Boyle’s claim would now cover loss of earnings to retirement, again before any medical report supported such a claim. She formally retired from the NHS on 23 September 2004.[31]On 4 August 2004, Dr Tomkinson provided a written report for Occupational Health purposes, which was provided to CICA. His earlier reports had provided a number of different diagnoses for Mrs Boyle’s problems; now, for the first time, he confirmed the diagnosis of PTSD, as well as the diagnosis of a recurrent depressive disorder. The report again referred to the long history of violence in the relationship with Adams and said that, following the assault in October 2001, Mrs Boyle developed symptoms of PTSD. He referred to the “incidents of conflict at work” and confirmed that Mrs Boyle “has found these intolerable”. Also for the first time, Dr Tomkinson dealt with his view of the long-term consequences:
“It is my view that her condition must be regarded as permanent and likely to last until the normal age of retirement. I do not believe that she will be able to cope with any form of work that will involve contact with the general public, in particular she will not be able to carry out nursing duties as this is likely to lead her into contact with people who are distressed and anxious and who may project some of these painful feelings onto her. I believe that if she were to attempt to return to work that her psychological health would deteriorate to a very considerable extent.”
This was the first time that any of the medical professionals involved in her case had suggested that the PTSD was permanent and justified Mrs Boyle’s decision to retire.[32]Mrs Boyle was quick to see the significance of this report. She wrote to the defendant on 16 August 2004, enclosing a copy of the letter and described it as “…definitive in both prognosis and diagnosis. I would imagine this could change the status of my claim.” As to the permanent nature of the PTSD, Mrs Boyle was right: for the first time, she had a medical report which appeared to justify her decision to retire by reference to the PTSD. But Dr Tomkinson’s August report was still not a full endorsement of the proposition that the October 2001 assault was the only cause of the PTSD. His emphasis upon the long history of violence was, for the reasons noted in paragraph 14 above, unhelpful to Mrs Boyle’s claim to the Panel.[33]Ms Varty was, I find, aware of the potential importance of Dr Tomkinson’s report in the context of the CICA appeal. However, she was also properly aware that the Panel would be likely to set greater store by the opinion of the independent expert (Mrs MacLaren) than the treating psychiatrist. On 26 October 2004, she sent that report to Mrs MacLaren, asking her, amongst other things, whether the report “causes you to alter your opinion/prognosis.” Mrs MacLaren’s reply of 15 November 2004 was unequivocal. She said:
“(1) When assessed on 4th March 2004, [Mrs Boyle] was still managing employment albeit with some difficulty. In respect of Dr Tomkinson’s report of 4th August 2004, and the fact that [Mrs Boyle] has been granted retirement on ill health grounds, the situation appears to have deteriorated further. This does not appear to contradict my opinion as stated [in] my report of 8th March 2004, but suggests that she now falls into a more severe category of mental illness than when she was assessed. (2) There are clearly pre-existing issues relating to ongoing domestic stress and physical injury to her right knee in May 2000 which have affected her ability to work. However this does not substantially alter my opinion or prognosis. (3) I believe [Mrs Boyle’s] inability to return to work is primarily due to her increased difficulty in coping with stress as a result of the domestic violence experienced although there are indications of pre-existing vulnerability.”
[34]Accordingly, although this further report was helpful, it did not support Dr Tomkinson’s suggestion that the PTSD was permanent and/or that it justified early retirement. In addition, with its references to pre-existing vulnerability, the report was not saying that the only cause of the PTSD was the assault of October 2001. On the other hand, I accept that Mrs MacLaren’s choice of words was sufficiently elliptical to mean that the report could be relied on as proving at least some support for the case on causation.[35]A schedule of loss was subsequently prepared, which put the claim for loss of earnings at a figure in excess of £200,000. The evidence was that this was based on Dr Tomkinson’s opinion, not the reports of Mrs MacLaren.[4]THE DECISION OF THE CICA PANEL[36]As they had done two years previously, the CICA prepared the hearing bundle for the appeal which again included a document called a Hearing Summary. In that Summary, prepared in April 2006, the Panel warned that one of the key issues was whether or not Mrs Boyle could demonstrate that her difficulties were solely attributable to the assault. The Summary said:
“…[In] view of [Mrs Boyle’s] complicated history both pre and post index incident and with the Authority’s contention that [Mrs Boyle’s] difficulties are multi-factorial in origin, the Authority cannot be satisfied that [Mrs Boyle’s] loss of earnings in past or future can be considered to be solely and in direct consequence of the index incident of 21st October 2001.”
[37]The appeal was heard on 18 May 2006. There was no live evidence, although Mrs Boyle’s case was presented by a barrister. Ms Varty’s attendance note made clear that the appeal was refused because of the very concern referred to in the Hearing Summary document, namely Mrs Boyle’s failure to demonstrate that her psychological problems arose solely from or were directly attributed to the assault in October 2001. The Written Reasons, for the decision, provided over a year later by Michael Lewer CBE QC restated this point in detail. He said:
“Approaching the psychiatric evidence on that basis, we are satisfied that Mrs MacLaren (Consultant Clinical Psychologist) diagnosed PTSD for at least 6 months after the incident, but are satisfied the Applicant was not mentally ill and disabled when able to return to work in March 2002. She was described by her GP as normal and feeling fine when back at work. Thereafter there was what was called a relapse when she was off work from April 2003, which included a period nursing her father. However we have carefully read and reread the psychologist’s reports and letters, and are satisfied that for the period from April 2003 what she describes then are symptoms of PTSD, which is understandable as a victim is always likely to be worried by and recall an assault, but we are not satisfied that PTSD, with its necessary number of attendant symptoms, was then diagnosed as a mental illness. Nor are we satisfied that her medical retirement in the following year is attributable to the mental illness of PTSD due to the October 2001 incident. By then she had a poor work record, and her inability to continue was on our reading of the documents attributable to all the effects of the long lasting violent relationship she had had, to a previous history of depression and to problems and difficulties at work, and their effects on her fairly vulnerable personality. The effect of this is that we confirm the CICA award and there will be no award for loss of earnings.”
[38]Just a week after the Panel hearing, on 25 May 2006, Mrs Boyle indicated a claim against the defendant on the principal basis that “the contents of both medical reports from Dr Tomkinson and Mrs Alison MacLaren were so wide apart in content”. There was no evidence that she had ever raised this matter before the hearing, which left me puzzled as to why, if this was (as it seemed to be) something that she had been worried about for a while, she had not done anything about it prior to the hearing.[5]THE EVIDENCE AT THE TRIAL[39]I heard very little oral evidence. I heard from Mrs Boyle, who was a gentle and careful witness who coped well with the undoubted stress of having to give evidence. The difficulty was that, as I had noted before she gave evidence, there were few, if any, factual disputes between the parties. On the issue as to whether or not she had suffered a relapse in April 2003, I have found that that is precisely what had happened. Beyond that, although Mrs Boyle’s evidence was helpful by way of background, there was very little that she could add to the relevant documents.[40]For much the same reason, neither Ms Varty nor Mr Scott, her supervisor at the defendant firm, could add much to the relevant contemporaneous documents. I found Ms Varty, although relatively inexperienced at the time of the CICA appeal, to be a clear and honest witness. Mr Scott was unable to add very much to the detail, given his limited role.[41]The only other evidence at trial was the expert evidence adduced on behalf of Mrs Boyle. This consisted of two reports from Dr Tomkinson, dated 2 February 2007 and 8 August 2007, and a report from Mrs MacLaren dated 2 January 2007. These reports were said to be those reports which, but for the defendant’s negligence, should/would have been adduced at the Panel hearing in May 2006. Mr Buckett agreed that these reports could be allowed into evidence but he did not accept their contents. He did not, however, require the makers to be cross-examined.[42]This meant that, like the Panel, I did not have the opportunity of seeing the witnesses myself. This created certain difficulties because, in my view, the relevant reports only address tangentially the issues which I have to decide. It is rather unfortunate that, in a professional negligence case that – if the allegations are made out – arises out of what might fairly be called a breakdown of communication between lawyer and expert, there is still a mismatch between the expert’s reports and that which is required to establish Mrs Boyle’s case in these proceedings. I set out my concerns about the reports at paragraphs 43-51 below.[43]Dr Tomkinson’s reports of 2007 largely rehash what he said at the time, namely that Mrs Boyle’s PTSD is permanent and could be linked back to the assault in October 2001. They add nothing of significance to his earlier reports before the Panel. Neither do the short reports/letters that he wrote in 2005-2006, which were not before the Panel but which were sent to Mrs MacLaren for the purposes of these proceedings. For the purposes of this judgment, it is unnecessary to provide a close textual analysis of all the different ways in which Dr Tomkinson has expressed his central views.[44]However, I am concerned as to the overall reliability of Dr Tomkinson’s reports. As can often happen with treating doctors, his views might be regarded as less than objective. He did not originally diagnose PTSD at all. His unreliability can perhaps be best illustrated by reference to events after the CICA appeal had been dismissed and this claim had been intimated. On 18 September 2006, Mrs Boyle wrote to Dr Tomkinson a letter in which she told him, in some detail, what she wanted his report to say for the purposes of these proceedings. Those instructions focused on how everything was referable to the assault in October 2001, and not anything either before or after that. I find that this emphasis arose because Mrs Boyle was well aware that it was only by reference to the assault in October 2001 that she could have recovered compensation from CICA.[45]In fact, Dr Tomkinson’s first report in response to these instructions, dated 9 October 2006, put her depression and PTSD down to “a series of assaults”. I find that Mrs Boyle knew that such a conclusion was not good enough and, as she candidly accepted in her oral evidence, she persuaded Dr Tomkinson to change his view so that his subsequent report, dated 6 November 2006, said that the PTSD was “as a result of the single severe life threatening incident in October 2001 inflicted by her ex-partner”.[46]A willingness to alter written views in such a way, on the instruction of the client, and with the sole purpose of improving the strength of this professional negligence claim, causes me considerable disquiet. Although I accept that what might be called Mrs Boyle’s manipulation of Dr Tomkinson in this way was both inadvertent and understandable, it follows that I have to be very sceptical about accepting, without more, the accuracy or reliability of Dr Tomkinson’s written reports. I am in no doubt that, as her treating psychiatrist, he was doing his very best to help his patient. But, for the reasons that I have given, I am unable to find his conclusions reliable. My reading of the Hearing Summaries provided by the Authority leads me to conclude that they were of the same view; what really mattered, as far as they were concerned, was Mrs MacLaren’s views.[47]Mrs MacLaren’s report in these proceedings, of 17 January 2007, is in similar form to her first report (paragraph 27 above). On its face, this report represented a stronger statement of Mrs Boyle’s CICA claim. In particular, as to the long-term effects of PTSD, Mrs MacLaren referred to her previous report and then said:
“Following the current assessment, and the marked increase in psychological symptoms and the deterioration in general coping abilities, it seems probable that these symptoms are likely to last for a significantly longer period of time and show little sign of resolving at present.”
Subsequently, at paragraph 11.1, Mrs MacLaren went on:
“Since the date of my last report at which time Mrs Boyle was displaying Post Traumatic Stress Disorder as a result of her involvement in the index incident in October 2001, there has been further deterioration. Mrs Boyle has been retired from work on ill health grounds and seems unlikely to work again…”
[48]The principal difficulty with this apparent shift of position is that it was not based on any new information or source documentation. Mrs MacLaren knew in November 2004, when she commented on Dr Tomkinson’s report (paragraph 31-33 above), that Mrs Boyle had prematurely retired and that, at least in his view, her PTSD was the permanent condition which had brought that about. Yet in her comments on Dr Tomkinson’s report in November 2004, she expressly stuck to her original diagnosis, to the effect that, whilst PTSD had had an effect, it could not be said to be permanent. There is nothing in Mrs MacLaren’s latest report of January 2007 which could (or is said to) justify a change of view on this issue, and she certainly makes no attempt, within the body of the report itself, to explain how it has come about.[49]Further, even if this latest report represents a change to her prognosis, Mrs MacLaren does not unequivocally conclude that the PTSD prevents Mrs Boyle from ever working again. For example, at the foot of page 5 of the report, Mrs MacLaren says:
“It seems probable that Mrs Boyle may be left with permanent psychological symptoms as a result of the incident and there must be significant question marks about her ability to return to any form of work”
(emphasis supplied). That is manifestly not a ringing endorsement of Dr Tomkinson’s view, even now: it is a highly qualified expression of view which would again suggest that a claim based on loss of earnings up to the normal retirement age may well be unjustified.[50]Mrs MacLaren’s failure to explain how her change of view may have come about arises even more starkly in relation to the causation issue. As we know, at the time of her report in November 2004, Mrs MacLaren’s view was that the PTSD was not solely attributable to the assault in October 2001. At the end of section 9 of her latest report, she says:
“Her inability [to manage work, social life and a full relationship with her partner] to do so now is attributable to the index incident on 21st October 2001.”
That line, as Mr Buckett correctly noted in his closing submissions, stands alone, without any introduction, justification or support. There is nothing in the preceding section of the report which explains how and why it was the assault in October 2001, as opposed to any other cause, which was the sole cause of Mrs Boyle’s PTSD. Mrs MacLaren does not explain how she has reached that new view; or why she had previously been of a different view and what has changed; nor does she begin to suggest that, but for some act or omission on the part of the defendant, she would have expressly stated that view in her report of November 2004.[51]On this point, I note that some of Mr Sadd’s careful cross-examination of Ms Varty was designed to show that Ms Varty had not asked Mrs MacLaren precisely the right questions, or that Mrs MacLaren would have given different answers if the questions themselves had been less vague. I consider that that criticism was unfair for two reasons. First I consider that the questions were appropriate and clear. After all, Dr Tomkinson’s August report could be summarised in a sentence:
‘Mrs Boyle has permanent PTSD and cannot work again and that is solely due to the assault in October 2001’
. If that was also Mrs MacLaren’s view, when she was asked to comment on Dr Tomkinson’s August report, she could have said so in very few words.[52]But secondly, if Mrs Boyle’s case now is that the original questions to Mrs MacLaren were in some way unspecific or vague, and that it was in the formulation of the questions that things went wrong, then the only witness who could provide evidence to support such an allegation would be Mrs MacLaren herself. Only she could have said that, had she been asked question x rather than question y, or if the question had been formulated in a different way, she would have given answers more favourable to Mrs Boyle’s claim. Mrs MacLaren does not begin to address those matters in her 2007 report. It does not seem to me to be appropriate to assume that, just because Mrs MacLaren now appears to have changed her view, on causation, that must be Ms Varty’s responsibility.[53]Finally on the topic of causation, I note that, even in her latest report, Mrs MacLaren does not conclude that everything turned on the assault in October 2001. She says that “the majority of [Mrs Boyle’s] symptoms would have been present at the time of the appeal” (emphasis added), but expressly refers to the fact that Mrs Boyle would have been “further distressed by the events relating to her appeal”. This again seems to suggest that, in accordance with all of her previous reports, Mrs MacLaren remains unable to say that Mrs Boyle’s psychological condition was entirely due to the assault.[6]THE ALLEGATIONS OF BREACH OF DUTY a). The Law[54]I derive the following propositions from the authorities: i) The court “must be aware of imposing upon solicitors…duties which go beyond the scope of what they are required and undertake to do…the test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession”: see Midland Bank v Hett, Stubbs and Kemp [1979] Ch 384, per Oliver J. at p.403. ii) This test must be applied by reference to the reasonably competent practitioner specialising in whatever areas of law he or she holds himself out as a specialist. Thus, in Matrix Securities Limited v Theodore Goddard [1998] PNLR 290, a case concerned with tax advice, the standard was that to be expected of a reasonably competent firm of solicitors with a specialist tax department, whereas in Balamoan v Holden & Co [1999] NLJ Prac. 898, where the defendant was a solicitor in a small country town instructed by a legally aided client in a comparatively small claim for nuisance, the Court of Appeal held that it was inappropriate to apply too rigorous a standard of care. iii) On matters of procedure, the solicitor is not negligent if he fails to display exceptional ingenuity in matters of tactics or procedure. What is required of a solicitor is reasonable competence and reasonable familiarity with the procedures of the courts in which he practices: see Hayward v Wellers [1976] QB 446 CA. iv) Errors of judgment, as opposed to errors that no reasonably well informed and competent member of the profession could have made, will not give rise to liability: see Saif Ali v Sydney Mitchell [1980] AC 198 at 218. To put it another way, where the solicitor is in a dilemma, not of his own making, and is forced to choose between two or more evils, the court will be slow to castigate his actual decision as negligent (see paragraph 11-103 of ‘Professional Liability’ by Jackson and Powell, 7th edition). v) Hindsight may prove advice wrong, but “hindsight is no touchstone of negligence”: see Argyll v Beuselinck [1972] 2 Lloyd’s LR 172.[55]In the present case, the defendant is a specialist personal injury firm. It is I think agreed that the standard of care to be expected from them was that of the reasonably competent specialist PI firm pursuing a CICA claim. b). Analysis

Allegation i): Going Back To Mrs MacLaren

[56]The critical question is whether Ms Varty and/or the defendant should have gone back to Mrs MacLaren after her last report in November 2004 in order to try again to ‘beef up’ her evidence in relation to the permanent nature of the PTSD and the claim that it could be attributed solely to the assault in October 2001. For a number of reasons, set out below, I have concluded that they were not obliged to do so, and their decision not to was not negligent.[57]First, Ms Varty had no reason to believe that Mrs MacLaren could offer a different or stronger opinion. The best evidence about the PTSD and its cause, as far as Mrs Boyle was concerned, came from Dr Tomkinson in his report of August 2004. Ms Varty had sent that to Mrs MacLaren to see if that changed her view, doubtless in the hope that she might expressly agree with it, or at least set out a view that was more favourable to Mrs Boyle than her earlier reports. Mrs MacLaren expressly declined to do so. There was no other evidence as to the PTSD and/or its cause on which Mrs MacLaren had not expressed a view. Thus, having tried and failed to get her to provide greater support for Mrs Boyle’s case, there was nothing which, reasonably, Ms Varty could or should have done.[58]Secondly, it needs to be remembered that, by August/September 2004, Mrs Boyle had retired on health grounds. Her claim for loss of earnings had therefore crystallised. The principal purpose of her claim to the Panel was to endeavour to persuade them that that retirement was directly attributable to the PTSD, which was itself solely caused by the assault in October 2001. Mrs MacLaren’s view, given when everything was known, was that the necessary causation was not made out. Since the retirement had crystallised the factual case on causation, and Mrs MacLaren had expressed a generally negative view as to that case, nothing further could have been done to persuade Mrs MacLaren to change her mind.[59]Thirdly, I accept Ms Varty’s oral evidence, which was echoed by Mr Scott, that she was concerned that, if she tried again, Mrs MacLaren would express herself in even less helpful terms. It was clear that Mrs MacLaren was not persuaded on the causation issue (indeed, as I have pointed out, she remained unpersuaded even in her report of 2007). The report of November 2004 must have represented to a reasonable solicitor the best that Mrs MacLaren was going to do for Mrs Boyle. I accept that there was a clear risk that, if Mrs MacLaren was approached again, she may have expressed herself in an even less helpful way, making the claim for loss of earnings all but impossible.[60]I accept Mr Sadd’s reasonable observation that there was no reference to this concern in any of the defendant’s contemporaneous documents. I also accept that a criticism could be made of Ms Varty or Mr Scott because they did not expressly advise Mrs Boyle that their view was that it was too risky to try Mrs MacLaren again. But it does not seem to me that anything turns on that. I accept that this was the sort of judgment call that solicitors involved in litigation or claims to the CICA make regularly throughout their working day and it is not always possible for them to note down each one. I am persuaded that this was a legitimate concern on the part of the defendant and was another reason why they were not obliged to go back yet again to Mrs MacLaren.[61]Although there are a number of different allegations of negligence, dealt with below, it seems to me that they all boil down to this single point: that, somehow, Ms Varty should have done something more about the difference of view between Mrs MacLaren and Dr Tomkinson, and somehow resolved it in Mrs Boyle’s favour. In my view, this is an unrealistic criticism of any solicitor. The problem, if there was one, lay with Mrs MacLaren, who had expressed opinions which were not helpful to Mrs Boyle. That was manifestly not Ms Varty’s fault. It was not for Ms Varty to manipulate the evidence of the independent expert, particularly in a CICA claim where (see paragraph 10 above) all reports have to be disclosed to the Panel.[62]Moreover, if it is suggested that, in response to getting another request for clarification, Mrs MacLaren would have provided a new report along the lines of the 2007 report, then two additional comments should be made. First, given that Ms Varty had sought to get Mrs MacLaren to ‘beef up’ her evidence and Mrs MacLaren had singularly failed to do so, Ms Varty would have had no way of knowing that, given yet another chance, Mrs MacLaren would (suddenly and without explanation or objective justification) have expressed herself differently. In my judgment, this allegation demonstrates the dangers of hindsight writ large.[63]Moreover, in my view, to the extent that Mrs MacLaren’s recent report is a stronger and more powerful endorsement of Mrs Boyle’s case, responsibility for the failure to provide that material to the Panel in 2006 must rest entirely with Mrs MacLaren herself. I have already made the point that there were no new events occurring after Mrs MacLaren’s report in November 2004 which could objectively justify a radical change of view. Indeed, Mrs MacLaren’s most recent report appears to suggest that the views expressed therein are very similar to the views expressed in her earlier reports. She seems not to have appreciated that, on a proper analysis, the reports that she had provided in 2004 were far from being a ringing endorsement of Mrs Boyle’s late-emerging case. I am firmly of the view that it was not for Ms Varty to fuss round the independent expert, making sure that the expert was properly expressing herself. Ultimately, responsibility for the content and terms of Mrs MacLaren’s report must rest with Mrs MacLaren.[64]Finally, I should deal with the related allegation that the defendant should have organised a conference with Mrs MacLaren in October or November 2004 so as to discuss the ways in which her report might be ‘improved’. This, so it seems to me, is only another way of saying that the defendant should have gone back to the expert to get her to change her view, and for the reasons that I have already given, I reject that allegation. Moreover the evidence was that, in CICA cases where there is no oral evidence, conferences with experts are rare. Certainly that was Ms Varty’s experience. It seems to me that, unless there was an obvious difficulty which could only be resolved at a face-to-face meeting with the expert, it would be unusual to have a conference for the purposes of a CICA claim. For the reasons that I have given, there was no such difficulty in this case.

Allegation ii): The Questions Asked

[65]As noted in paragraphs 51-52 above, it is part of Mrs Boyle’s claim in these proceedings that the questions asked of Mrs MacLaren were too vague and were therefore a contributory factor, if not the main reason, why Mrs MacLaren failed to provide a proper endorsement of her claim. I have already indicated that I consider that those criticisms are unfair, particularly in the absence of any evidence from Mrs MacLaren herself, who would have been the only person who could have said that the questions were, in some significant way, unspecific and therefore misleading.[66]However, for completeness, I should set out the questions and deal with the specific criticisms made. The questions read:
“I should be obliged if you could consider the documents enclosed and confirm: (1) Whether the report of Dr Tomkinson causes you to alter your opinion/prognosis. (2) Whether there are any issues contained with the Claimant’s Occupational Health records or C181, C82 and C151 [the summaries of past medical history] that causes you to alter your opinion/prognosis. (3) Please also confirm specifically whether you believe the claimant’s inability to return to work is due to the domestic violence she suffered or whether it is due to other factors.”
I have set out Mrs MacLaren’s answers to those questions at paragraph 33 above.[67]In my judgment, question 1 could not have been clearer. Dr Tomkinson had said that Mrs Boyle’s PTSD was permanent and that it justified early retirement. He also said that it was solely attributable to the assault in October 2001. The only issue was: did that expression of view change Mrs MacLaren’s opinion? If Mrs MacLaren agreed, she could have said so. But she did not agree, and so she made plain the extent of her disagreement.[68]The second question arose because the Panel were anxious to ensure that Mrs MacLaren dealt in full with the earlier medical history. That was important, because, as we have seen, the Panel were always of the view that sole attribution was going to be difficult. Mrs MacLaren had dealt, albeit briefly, with the medical history in her original report. It does not appear that she considered that she needed to do anything further in relation to that aspect of the case. Certainly her answer to this question is short and clear-cut. Again, no criticism can attach to Ms Varty concerning the nature of the question.[69]I accept that, in relation to the third question, it would have been better if Ms Varty had referred to the assault in October 2001, rather than “the domestic violence she suffered”. The use of those more general words might, in isolation, have been taken to mean that Ms Varty was asking Mrs MacLaren about the whole history of the relationship with Adams. But I am satisfied that, in context, as Ms Varty explained in her oral evidence, this was a clear reference to the assault. All of the documentation generated by the CICA claim was explicit: that Mrs Boyle’s claim had to stand or fall on the assault in October 2001 and nothing else. I am quite sure that Mrs MacLaren understood that and dealt with the question on that basis: her original report was on the express basis that ‘the index incident’ was the assault on 21 October 2001. Again, if Mrs MacLaren had thought that the question was not a reference to the assault, but a reference to the whole history of the violent relationship (which would have been a new topic for her), then I would have expected to see evidence from her to that effect. There is none.[70]For these reasons, therefore, I reject the criticism that, in some way, Mrs MacLaren gave incomplete or incorrect answers to the questions because those questions were unspecific or vague. On the contrary, it seems to me that the questions were clear.

Allegation iii): Whether Ms Varty Should Have Requested Mrs MacLaren to Examine Mrs Boyle Again?

[71]Another of the allegations made on behalf of Mrs Boyle was that Ms Varty was negligent because, either at the time that she asked the questions in October, or after she had received the answers in November, she did not request that Mrs MacLaren examine Mrs Boyle again. In my judgment, this allegation is misconceived. If Mrs MacLaren, as the medical expert, thought that she needed to examine Mrs Boyle again before she commented on Dr Tomkinson’s report, then it was for her to say so. She did not give any such indication. In those circumstances, it was hardly for Ms Varty to suggest another examination. If the expert psychologist was not saying that a further examination was needed, then it was not for Mrs Varty to take a different view.[72]Further, for completeness, I am bound to question what, on the evidence, a further examination would have shown. When Mrs MacLaren examined Mrs Boyle again for the purposes of her 2007 report, she noted that Mrs Boyle had deteriorated; but, even without the benefit of an examination, she had noted that same deterioration in her report of November 2004. Mrs MacLaren does not say in her report that an examination of Mrs Boyle in late 2004 or 2005 would have made some form of critical difference to the formulation of her views prior to the appeal hearing, and no such case is made out on the material before me. Accordingly, I reject that allegation of negligence.

Allegation iv): The Disclosure of Mrs MacLaren’s Report

[73]During his closing submissions, Mr Sadd suggested that Ms Varty should not have sent out Mrs MacLaren’s November 2004 report without first discussing its consequences and effect with Mrs Boyle. It seems to me that this is a potentially valid criticism; it may well have been better for Mrs MacLaren’s views to be discussed with Mrs Boyle before the report was sent to CICA.[74]But I am not persuaded that it was negligent. The sending out of the report to the CICA could only have been potentially negligent if it had been open to Ms Varty to retain the report and/or not to disclose it at all. For the reasons set out in paragraph 10 above, I find that that was not a course open to her. In the light of the Scheme, and Mrs Boyle’s agreement to provide copies of all reports to CICA, Mrs MacLaren’s report had to be disclosed. The fact that it was disclosed immediately, rather than a few days later after disclosure with Mrs Boyle is of no account, and Mr Sadd could not point to anything that indicated the contrary.

Allegation v): A Further Report From Dr Tomkinson?

[75]The final allegation with which I should deal concerns Dr Tomkinson. Mr Sadd suggested in his closing submissions that Ms Varty was negligent because she did not ask Dr Tomkinson to produce a further report for the Panel. I was initially puzzled by that allegation, given that Dr Tomkinson might be said to have showered the Panel with numerous reports prior to May 2006. On analysis, the allegation was that a new report would have masked the fact that Dr Tomkinson’s earlier reports, such as his report of August 2004, had been prepared for the Occupation Health Department (and that the Panel were always going to give less weight to a report prepared for another purpose than to a report prepared for the CICA claim itself).[76]It does not seem to me that this allegation can be made out. I accept of course that the Panel was always likely to take greater note of Mrs MacLaren’s views rather than those of Dr Tomkinson. But that was because of the difference, explained above, between the treating psychiatrist and the expert psychologist. Thus, even if Dr Tomkinson had prepared a fresh report, which was not triggered by the needs of the Occupational Health Department but said the same thing, it would have added nothing of value, because the Panel would still have placed greater weight on Mrs MacLaren than Dr Tomkinson. (vi). Negligence: Summary[77]Accordingly, for these reasons, I am not persuaded that Ms Varty fell below the standard to be expected of the reasonably competent solicitor specialising in CICA claims. On the contrary, it seems to me that Ms Varty did all that she reasonably could. If (which I do not accept) something went wrong in the presentation of Mrs Boyle’s case, it was because Mrs MacLaren had failed to appreciate, at least until after the appeal was refused, that her 2004 reports were not a powerful endorsement of Mrs Boyle’s case.[78]Although that conclusion makes it unnecessary for me to go on to consider the other elements of the case, such as causation and quantum, it seems to me that, in deference to the arguments advanced by both counsel, I should do so.[7]CAUSATION a). The Law[79]I was referred to a number of authorities dealing with causation and loss in professional cases, including Kitching v RAF Association [1958] 1 WLR 563; Mount v Barker Austin (a firm) [1998] PNLR 493; Mohammad Hanif v Middleweeks CA (19/07/00); and Michah Sharpe v Michael Addison [2003] EWCA Civ 1189. The starting point for all those cases is the judgment of Lord Evershed MR in Kitching, when he said at p.575:
“In my judgment, what the court has to do (assuming that the plaintiff has established negligence) in such a case as the present, is to determine what the plaintiff has by that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can.”
In the same case, Parker LJ said at p.576-577:
“If the plaintiff can satisfy the court that she would have had some prospect of success, then it would be for the court to evaluate those prospects, taking into consideration the difficulties that remain to be surmounted. In other words, unless the court is satisfied that her claim was bound to fail, something more than nominal damages falls to be awarded.”
[80]All of those cases, and the additional authority relied on by Mr Buckett of Michael Hatswell v Goldsbergs (a firm) [2001] EWCA Civ 2084, were claims against solicitors which arose out of the alleged negligence on the part of the solicitor which had resulted in the underlying claim never having been heard at all. They were claims which, because of the intervening negligence, had been struck out or were otherwise doomed to fail and had therefore not been pursued. The present case is different. Here, Mrs Boyle’s claim to the CICA Panel was heard and adjudicated upon its merits. Accordingly, the question for me is rather different: if I assume negligence on the part of the defendant, what (if any) difference would it have made if there had been no negligence and the reports of 2007 from Dr Tomkinson and Mrs MacLaren had been before the Panel?[81]Counsel were only able to find one case, Robert Channon v Lindley Johnstone (A Firm) [2002] EWCA Civ 353, where what was being valued was the loss of a chance following the presentation of the claimant’s original claim, but in a way that was hobbled by the defendant solicitor’s failure to prepare it properly. In that case, the Court of Appeal adopted the test in Allied Maple Group v Simmons and Simmons [1995] 1 WLR 1602 at 1621, which focused on two elements: what better terms might have been obtained but for the negligence, and what were the chances of obtaining them. It seems to me that that approach is the correct one in the present case.[82]In addition, I have had regard to the threshold test, set out by the court of Appeal in Browning v Bachers [2004] EWCA Civ 753 and Jack J in Feakins v Burstow [2006] PNLR 6, that the claimant must show that, at the notional trial (i.e. in this case, a Panel hearing with the additional reports) “he had a real and substantial rather than a negligible chance of success”. Negligible has been taken to mean less than 10%. b). Analysis[83]If, contrary to my conclusion, Ms Varty and/or the defendant were in breach of their duty to Mrs Boyle, I am in no doubt that such breach did not cause – and could not be demonstrated to have caused – any loss. The claim therefore fails on causation grounds in any event.[84]The first reason for that conclusion concerns the reality of Mrs Boyle’s position. There had originally been no claim for loss of earnings in her application to CICA. The loss of earnings’ claim emerged later and, even when it did, it was not originally advanced as being permanent or extending to her retirement age. Put shortly, the loss of earnings’ claim mutated as the appeal process dragged on and may therefore always have been regarded by the Panel as somewhat opportunistic. Thus, even if a yet further report had been obtained from Mrs MacLaren which was more positive than her earlier reports, the Panel would inevitably have had to consider that fresh evidence against the background of an ever-changing case. It seems clear to me that, in consequence, they would always have regarded the claim with considerable scepticism, however the evidence developed.[85]Secondly, on the critical issue of causation, the highest that it can now be put on behalf of Mrs Boyle is that, but for the negligence, Mrs MacLaren’s 2007 report should have been before the Panel. For the reasons set out in paragraphs 47-53 above, I consider that that report contains just one bare line dealing with causation, unexplained and unjustified. Moreover, for the reasons explained in paragraph 53 above, the report remains equivocal on the critical issue of causation and does not rule out other causative factors. In those circumstances, it is impossible to conclude that the Panel would have set aside their previously-expressed doubts about causation in the face of a report which contained a one line assertion that was not supported and which, on further analysis, remained equivocal.[86]It is important to remember that, on causation, the Panel were always concerned that, in all the circumstances, it was going to be very difficult for Mrs Boyle to demonstrate that the PTSD was solely due to the assault in October 2001 and that nothing else was relevant to the onset of PTSD. Indeed, the Panel had openly expressed their preliminary view that such a case could probably not be made out in the Hearing Summary provided in April 2006. It is, I think, wholly unrealistic to suggest that a yet further report from Mrs MacLaren, even if it had been couched in more favourable terms, would have made any significant difference to the outcome. The Panel were plainly concerned that, in all the circumstances, the causation case could not be established and, in my view, that approach would not have been affected even if Mrs MacLaren had provided another, more favourable, report.[87]Finally, and most important of all, it seems to me that, standing back, it was always going to be extremely difficult for Mrs Boyle to demonstrate that everything turned on the assault of October 2001 and that nothing else was relevant. Such a claim, although critical for Mrs Boyle’s chances of success, was contrary to the weight of the evidence. It meant that the panel would have to ignore (as factors contributory either to the PTSD or the decision to retire) her lengthy history of depression and her attempts at suicide and self-harm (paragraph 11 above); the years of her abusive relationship with Adams before the assault in October 2001, when tragically physical assaults were a regular feature of her life (paragraphs 12-15 above); the death of her father which a number of the reports indicate was a significant factor in her mental state (paragraphs 23 and 27 above); her poor work record due in part to matters unconnected to her claim (paragraphs 18 and 24 above); and the later incidents at work, involving actual and threatened violence, which lead Mrs Boyle to conclude that she could no longer work as a nurse (paragraph 30 above).[88]It seems to me that, with respect to Dr Tomkinson’s conclusions to the contrary, all of these factors militated against a conclusion that the assault in October 2001 was the sole cause either of the PTSD or her decision to retire early. The existence of these various other causes, which the Panel had very much in mind when dismissing the appeal, could not, somehow, be made magically to disappear merely because Mrs MacLaren provided a further stronger report. The reality was, and I find, that Mrs Boyle’s psychological difficulties were always likely to be treated by the Panel as the result of a whole series of factors. One of the most important was undoubtedly the assault in October 2001 but it is impossible to say that that assault was the sole cause of the difficulties, or her decision to retire from her job as a nurse.[89]As I have already noted, even in her most recent report, Mrs MacLaren was unable to attribute everything to the assault; that other events had a part to play (see paragraph 53 above). I am bound to say that, on all the material before me, I consider that such a conclusion was inevitable.[90]Thus, for the reasons which I have given, it seems to me that the existence of a later and more favourable report from Mrs MacLaren would have had either no effect on Mrs Boyle’s prospects of persuading the Panel that the PTSD was solely due to the assault of October 2001, or a negligible effect (i.e. not greater than 10%). In the circumstances, even if Ms Varty ought to have gone back to Mrs MacLaren or Dr Tomkinson for further reports, this would have had no effect on the outcome of Mrs Boyle’s appeal.[91]Accordingly, for these reasons, the claim against the defendant also fails on causation.[8]QUANTUM[92]Although, because of my conclusions on both liability and causation, the issue of quantum does not arise, it is appropriate to set out briefly what my approach would have been had I concluded that the defendant had been negligent and that that negligence had a more than negligible effect on Mrs Boyle’s prospects of success at the hearing before the CICA Panel. a). Percentage[93]The first issue is what percentage figure I would utilise to represent Mrs Boyle’s loss of a chance; in other words, by what percentage would her prospects have been improved if there had been further reports from Mrs MacLaren or Dr Tomkinson, and if I am wrong to say that the effect would have been negligible at best?[94]For the reasons that I have already set out, I cannot, even taking the most generous view, conclude that such a percentage would have been higher than 25%. In an inquisitorial hearing, with a Panel who were obviously sceptical as to the underlying merits of Mrs Boyle’s case, it would, I think, be quite unrealistic to take a percentage chance of an improved outcome higher than 25%. b). Tariff Figure[95]As to the calculation of the tariff figure that may have been recovered by Mrs Boyle, I reject the submission made on her behalf that this was a category 18 case justifying a figure of £22,600. In my judgment, this was, at the highest, a level 16 case which would have produced a tariff figure of £19,750. c). Past Loss of Earnings[96]This is agreed at £25,939. d). Future Loss of Earnings and Pension Loss[97]The real issue here is whether the Panel would have awarded past loss of earnings and the pension loss on the multiplier/multiplicand basis, or whether they would have taken a more broad-brush, lump sum approach. Either approach was, in principle, available to them.[98]I am entirely confident that the Panel would have adopted a lump sum approach. There were simply too many variables to justify a multiplier/multiplicand approach. I have already noted that, even in her 2007 report, Mrs MacLaren seems to suggest that the PTSD would not necessarily justify a claim for loss of earnings down to pension age (paragraph 49 above). Moreover, the contemporaneous records demonstrate that, even after she had retired, Mrs Boyle was considering returning to some form of employment, albeit on a part-time basis.[99]In those circumstances, I accept the defendant’s case that the future loss of earnings would not have produced a lump sum figure in excess of £20,000, with a pension loss, also calculated on a lump sum basis, of £5,000. e). Calculation[100]Accordingly, the maximum that Mrs Boyle would have recovered would have been £19,750 under the tariff; £25,939 for past loss of earnings; and £25,000 for future loss of earnings and pension loss. That makes a total of £70,689. From that it is agreed that I must take off the £5,150 already paid and the interim payment of £1,000. That produces a figure of £64,539.[101]It is then necessary to apply the 25% figure to reflect the loss of a chance. In other words, if I was wrong on both liability and causation, the value of the loss of a chance in Mrs Boyle’s case is 25% of £64,539, a figure of £16,134.75.[9]CONCLUSIONS[102]For the reasons set out in Section 6 above, I find that the defendant was not negligent or in breach of its duty to Mrs Boyle.[103]For the reasons set out in Section 7 above, I find that, even if the defendant had been negligent, its acts or omissions would have had no effect on the outcome of the Panel hearing or an effect which was entirely negligible.[104]If I were wrong as to both liability and causation, I would value Mrs Boyle’s loss of a chance at the figure of £16,134.75, calculated in accordance with the figures set out in Section 9 above.[105]However, for the reasons explained above, this claim must be dismissed. I will deal separately with all other issues, including costs.

Cited in 1 later judgment