“4. The Claimants do file and serve final Amended (or Re- Amended) Individual Particulars of Claim in respect of the Test Claimants identified in paragraph 1 of this Order by 4pm on15 September 2017 . 5. In respect of any amendment not contained within the draft Amended (or Re-Amended) Individual Particulars of Claim already served, there be liberty to the Defendant to apply in respect of the final draft served in accordance with paragraph 4 of this Order, such an application to be made by 4pm on Tuesday3 October 2017 . Any such application may be made by notifying the Court and the Claimants, and will be considered in the week commencing2 October 2017 .” 2017.”
“28. The Claimants state that the proposed amendments provide clarification of the particular claims in the light of the medical evidence and remove claims no longer pursued. They say the amendments are only to deal with issues established by the medical evidence which are consistent with what is already pleaded. In other words, despite the apparent generalisation of the whole of the medical evidence of the doctors, whether written or oral, the Claimants do not seek to amend so as to rely upon any specific injuries not already pleaded in the Particulars of Injury. There were a number of examples of these in the medical evidence. 29. The main issue in respect of injuries was the general statement that the Claimant will refer to and rely upon the written and/or medical evidence of the doctors. On analysis there is little if anything between the parties on this. The Claimants say it is there only to deal with issues established by the medical evidence consistent with what is already pleaded. This necessitates that there be no amendment allowed of the particulars of injuries save to that limited extent. During the hearing a redraft was provided to add the words “insofar as it refers to matters already pleaded”
“They (the Claimants) are very severely constrained. They can’t go outside their present pleadings. There is obviously a bit of sort of wiggle room, like the one where there’s specific evidence about scrotum but he said he had been beaten all over his body, but subject to that very bit of wiggle room, they are limited by the present pleadings. They can’t expand it. So you know that. It doesn’t seem to me that anything that’s going to be in Mr Mansfield’s July submissions is really going to be affected by that tidying up process….”
“The Claimant has suffered psychological injurysymptomsrelated to her experiences in the Emergency and the trauma shewas exposed to; she still experiences flashbacksreminders of the beatings she endured as well as fear and anxiety regarding her experiences. The Claimant suffers intermittent headaches and isfeels psychologically disturbed. She hasnot suffered a recognised psychiatric or psychologicaldisorder 1 but experiences distressing memories andimages of events at the camp 2, prompted by specificreminders such as passing near the site of the camp. Thelegal effect of this is a matter for submission.”
“Unless there is a physical injury no question of damages for mental suffering, fear, anxiety and the like arises.”
“If there be such injury then….difficult questions of causation may arise. In some cases it may be possible that anxiety may be the subject of compensation; in others not. But unless there is some physical injury…there is no possibility of recovery.”
“In the case of the deliberate infliction of distress, it is arguable that in principle a defendant ought to be held liable for the claimant’s emotional reactions.”
“He experiences what he describes as flashbacks.”
‘The Claimants state that the proposed amendments provide clarification of the particular claims in the light of the medical evidence and remove claims no longer pursued. They say the amendments are only to deal with issues established by the medical evidence which are consistent with what is already pleaded. In other words, despite the apparent generalisation of the whole of the medical evidence of the doctors, whether written or oral, the Claimants do not seek to amend so as to rely upon any specific injuries not already pleaded in the Particulars of Injury. There were a number of examples of these in the medical evidence.’ [Emphasis added.]
“Our concern with the individual particulars has been partly met by the offer to limit the reference to the expert evidence to injuries that are already pleaded. We accept that offer”
“C’s claims arise from beatings. The proposed amendments provide clarification of the particular claims in the light of the evidence and to remove claims no longer pursued. Moreover, C’s only amend to deal with issues established by the medical evidence, which are consistent with issues established by the medical evidence, which are consistent with what is already pleaded”
“The general term ‘psychological injury’ cannot if already pleaded justify an amendment to allege any psychiatric condition, any more than a generalised pleading of ‘physical injury’ could justify an amendment to allege, e.g. mesothelioma”
‘The Claimant is aged about 7982 years of age having been born around 1935. At the dates of the events complained of he was in his late teens. Assault The Claimant was assaulted on multiple occasions. In particular the Claimant was caned indiscriminately across his entire body (including a blow to his torso and ablow to his left knee 1) at the camp and during forced labour 2. He was put in fear for his life. The Claimant has suffered psychological injury; he still recalls the traumatic death of his father and fear of being assaulted or killed. Further particulars of the Claimant’s injuries will beare set out in the medical evidence that will follow. Medical evidence is being sought in accordance with the Order of the Court. The Claimant will refer to and rely upon the written and oral medical evidenceprovided to the court by Ms McGuinness, Consultant in Emergency Medicine andProfessor Fahy, Consultant psychiatrist. Being held in servitude and subjected to forced labour; The Claimant was detained and forced to work without pay. An interference with his right to a private and family life; The Claimant was a minor at the commencement of the Emergency and achievedadulthood during the Emergency; in any event, hewho was separated from his family and his treatment violated his moral integrity. An interference with his freedom of thought, conscience and religion; freedom of expression/ right to freedom of assembly and association; discrimination The Claimant was regarded as a subversive by virtue of having taken the MauMau oath and, as such, he was treated as though he were a criminal, he was subjected to maltreatment, and forced to work. The right not to be discriminated against on grounds of race and/or national or social origin and/or other status; By reason of his race, ethnicity or status he was presumed to have taken the Mau Mau oath and treated as a criminal. An interference with his peaceful enjoyment of property and possessions. He was forced from his home and had to live in the forest in hiding. Right to education The Claimant was a minor who was unable to continue his education as a result ofthe closure of schools, the State of Emergency and the killing of his father. fn1 Beaten all over the body includes blow to torso and left knee; Dr elicits detailthrough more detailed examination [7-114- 115] but widespread beating is alreadypleaded. D was able to cross examine on these injuries despite making point thatthey were not pleaded [33-10185] 33. fn2 Ref for amendment; TC oral evidence 33-2550 – 2551 - no – one escaped beatingsin the camp; D did not establish that it was not during the labour, so there is nocontradiction to his w/st [7 – 93 para 12].’
‘The Claimant is aged about 7686 years of age having been born around 19 38 31. At the dates of the events complained of he was in hisearly to late teens.around 21years of age. Assault The Claimant was assaulted on multiple occasions. The Claimant was specifically struck on his back and shoulders with clubs and struck indiscriminately on his hips. The Claimant’s eyes and throat were damagedirritated by sand and dust. The Claimant has extremely poor eye sight which he attributes to sand and dust. The Claimant was beaten indiscriminately on a regular basis. He was regularly hit theClaimant with clubs his heads.on his head when being told to “cover”. This caused the Claimant great pain. The Claimant was whipped with canes and beaten. TheClaimant was beaten across his shoulder and back and shouted. The Claimant hasscars on his head from being required to carry buckets of soil on his head. The Claimant is now partially blind and suffers frequent headaches. The Claimant has not suffered psychological injury; but he suffers from what hedescribes as flashbacks when. They amount to distressing memories where he recalls the impact of detention upon his life and his belief it had led to a life in poverty. Further particulars of the Claimant’s injuries will beare set out in the medical evidence that will follow. Medical evidence is being sought in accordance with the Order of the Court. TheClaimant will refer to and rely on the written and oral medical evidence provided tothe court by Dr McGuinness, Consultant physician, and Professor Fahy, consultantpsychiatrist. [fn] 1 Clarification added; from w/st para 60 and 62 [9-184][fn] 2 Oral evidence 33-2710 regarding orders to “cover”. [fn] 3 Oral evidence cross examination 33-2642; counsel and judge inspected theClaimant’s head.’
“He was regularly hit theClaimant withclubs his headsonhis head withclubs”
‘I asked Mr Gakuya about any disturbing memories, flashback experiences or other disturbed thoughts. He said that it had never disturbed him as such. What would be gained by it? He said that he had not experienced bad dreams. He was a strong man. He never allowed his mind to go back. He looked forward. He coped well.’
‘He denied any history of intrusive memories of events at the prisons, flashback-type experiences or recurring dreams. 3)If, despite the disavowal of psychiatric injury, these amendments seek to assert or support some form of allegedly compensable injury, such an allegation is not already pleaded in the Particulars of Injury. The amendments therefore fall outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury. 3) PD Part 16.4 requires “brief details of the claimants personal injuries” with medical evidence attached. The order of 14.3.14 §15 [2-16] did not require C’s to attach medical reports to the IPOCs. It has always been clear that the evidence of the jointly instructed experts will be referred to. The amendment gives brief details of those factors suffered by the TC that will found a submission. TEST CLAIMANT 13 – NDOGO GATUTU The draft amended Particulars of Injury are at §56, as follows: ‘The Claimant is aged about 8386years of agehaving been born around 1931. At the dates of the events complained of he was in his 20s. He was working man and worked as a technician for Kenyan Power. The Claimant will refer and rely on the facts set out above which describe the maltreatment to which he was subjected, summarised as follows: Assault The Claimant was assaulted on multiple occasions. He was hit with canes and whippedand other implements, as pleaded herein. He was hit in multiple areas of his body. He was injured on his elbow, stabbed on his thigh with a spear, cut on hisleft arm with a sword, beaten on his right hip with a gun butt and hit in his eye socket with a whip. He was put in fear. The Claimant suffered pain as a result of each assault and, specifically unbearable pain in his left eye, his left thigh, right elbow, left arm, left lower leg, hip,back and shoulders. His thigh bled profusely. His eye was extremely sore and bruised. He bears the permanent scars of these assaults. The Claimant felt like he was beaten like an animal. Further particulars of the Claimant’s injuries will beareset out in the medical evidence that will follow. It is likely that the history of repeated beatings, assault and injury has aggravated the effects of natural ageing so that the Claimant is more infirm than would otherwise have been the case. Medical evidence is being sought in accordance with the Order of the Court. 35. The Claimant will refer to and rely upon the written and oral medical evidenceprovided to the court by Dr Payne-James, forensic physician and Professor Abel,Consultant psychiatrist.’
“regularly beaten” at Langata; “beatings happened on a daily basis”; “vicious assaults”; §16: Indiscriminate beatings”; He alleges beatings at Manyani: §19; §24: regularly a)Amendment allowed. Although there are slight distinctions as referred to by the Defendant in oral submissions this comes within the type of amendment permitted in TC13’s pleadings or evidence of tortious injury to the right elbow. beaten at Manyani; §56 Partics injury: C states he was “assaulted on multiple occasions” says he was “beaten like an animal”; He was ““hit in multiple areas of his body”
“regularly beaten” at Langata; “beatings happened on a daily basis”; “vicious assaults”; §16: Indiscriminate beatings”; He alleges beatings at Manyani: §19; §24: regularly beaten at Manyani; §56 Partics injury: C states he was “assaulted on multiple occasions” says he was “beaten like an animal”; The amendment is in line with Amendment refused. Had there been any evidence from the Claimant as to being assaulted on the lower leg, this would have been within the type of amendment permitted for TC31 in April 2017. However it is conceded that there is no such evidence. already falling within the Particulars of Injury. TC 31 already ruled upon (“beaten ferociously all over his body, including to thescrotal area”. 2) see above and under response to Ds introduction para 6. 3)Further or alternatively , there is no allegation anywhere in the IPOC of an incident in which TC13’s left lower leg was injured (as accepted by Mr Payne- James – see §2.a of his Pt35 responses [10-214]). This is a ‘liability’ amendment and there is no jurisdiction now to permit it. It should have been served by 16 June/21 July (§4.a of the19 May 2017 order) and ruled upon in July/August. 3) as above. 4)Further and in any event the amendment is wholly unclear – there is no pleaded account of how TC13’s left lower leg was allegedly injured. 4) as above. Amendment should be permitted and will liability for injury be a matter for submissions. TEST CLAIMANT 14 – JAMES MWAURA The draft amended Particulars of Injury are at §54, as follows: 36. ‘The Claimant is aged about 7976 years of agehaving been born around 1938. 37. At the dates of the events complained of he was around 14 years of age, and the events continued until he was in his late teens/ early 20s. 38. Assault 39. The Claimant was assaulted on multiple occasions. He was beaten and hit with canes and whips. 40. The Claimant suffered pain as a result of each assault. As set out in themedical evidence 1, he was caused scarring and he developed a mass on hisleft forearm after it was struck during an assault. 41. The Claimant has suffered psychological symptoms as set out in the medicalevidence but which do not satisfy the criteria for a recognized psychologicalinjury, the legal effect of which is a matter of submission; he still experiences what he describes as flashbacks of his ordeal and ruminates on the abuse he suffered. He feels helpless. When he sees a gun, he is immediately transported back in time to the maltreatment he suffered and that he witnessed others suffering during the Emergency. 42. Further particulars of the Claimant’s injuries will beareset out in the medical evidence that will follow. 43. Medical evidence is being sought in accordance with the Order of the Court. 44. The Claimant will refer to and rely upon the written and oral medical 45. evidence provided to the court by Dr Payne-James, Consultant physician, andDr Davidsson, Consultant psychiatrist. 46. Detention/interference with Security 47. Forced to live in a Village Post and then a Village Camp under conditions of detention and deprivation of liberty; 48. Interference with private and family life/ peaceful enjoyment of property and possessions 49. He was removed from his homesteadand was separated from his father; He was required to leave the family livestock. 50. [fn 1] The mass is referred to at 11-138 line 110; scars are set out 11-140 onwards; D dealt with this in cross examination at 33-9392 – 9395.’ Test Claimant Paragraph amended Amendment Agreed? Claimants’ response Judge 14 – James Mwaura 54 Particulars of Injury (see above) No. ‘As set out inthe medicalevidence 1, hewas causedscarring andhe developeda mass on hisleft forearmafter it wasstruck duringan assault.’ 1) This asserts injuries not already pleaded within the Particulars of Injury and should not be permitted. The Particulars of Injury make no reference to any physical consequence of the alleged assaults other than ‘pain’. 2) D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of 1) TC 14 describes intense beating during interrogation §17; repeated indiscriminate beating at §24 and §34; beating beaten “at will”; His Partics of Injury accordingly plead - § 54 “beaten on multiple occasions”
‘As a result of the Defendant’s alleged actions, the Claimant has suffered pain and injury, incarceration, breaches of her human rights, loss and damage. PARTICULARS OF INJURY/ BREACHES OF HUMAN RIGHTS The Claimant is about 8891years of agehaving been born around 1926. At the dates of the events complained of she was in her mid-20s. Assault The Claimant was struck several times on the top of her back with a stick; She was hit violently on her left forearm, whilst attempting to defend herself. The Claimant was struck with such force that she was caused permanent pain and suffering in her left arm; The Claimant was refused medical treatment for her back and arm injury, rather, she was forced to build another house with one arm immediately afterwards, causing her to experience such pain and suffering that she has remained permanently debilitated; The Claimant was regularly assaulted as part of a communal punishment. She was beaten with sticks, canes and the side of a panga, causing immense pain, suffering and permanent scarring on her forehead; The Claimant experienced the trauma of witnessing her fellow detainees being hacked to death; The Claimant was ordered to carry dead bodies onto a military lorry, causing an immense amount of distress and psychological injury; She was beaten severely with a cane, causing bruising, bleeding and swelling all over her body. Her back was particularly sore. The Claimant’s neck became stiff; she could not move it. She has a permanent scar on her left shoulder. The Claimant was refused medical treatment. She was forced to continue physical labour immediately afterwards, aggravating her injuries. The Claimant’s wounds took approximately 2 months to heal. The Claimant’s neck pains and her limitation of movement has never fully resolved. She has been unable to carry weights on her back since; The Claimant is tormented by the memories of her painful ordeal. She has never recovered from the announcement that her husband had been killed. She experiences what she perceives asflashbacks of the trauma she was subjected to; shesuffered a lifetime depressive disorder during her detention, currently in remission 1.The legal effect of this is a matter for submission. Further particulars of the Claimant’s injurieswill beare set out in the medical evidence that will follow; It is likely that the history of assault and injury has aggravated the effects of natural ageing so as to make the Claimant more infirm than would otherwise be the case; Medical evidence is being sought in accordance with the Order of the Court. The Claimant will rely on the evidence of Ms McGuinness, Consultant physician andProfessor Mezey, Consultant psychiatrist. 107. 1 Ref Prof Mezey [33-8741 – 8743]; [33-8752 – 8753].’
“Kiamwathi, in Gatuu” [3316582]. The effect of this re- amendment is, however, to maintain the confusion as to the relative sizes of Kiamwathi and Gatuu. it shows “Gatuu” in green). See [33-16582] line 8 – 20. J raises point that §8 needs to be consistent with §5. So: it is agreed that §8 should be amended consistently with §5, therefore it follows that “Gatuu” should be struck through, in green. 12 Detention & ForcedLabour: Kianyaga Chief’s Camp This is a reamendment that was overlooked previously. The Revised Annex to Andrew Robertson’s 6th statement made it clear that the Defendant disputed this amendment. Unfortunately, the challenge to the re- amendment was omitted from the version of the schedule the Claimants supplied when setting out their position on the Yes, this was overlooked. Para 12 was not ruled upon. 1)The J did not permit any disputed amendments and, in his reasoning, refers specifically to amendments relating to place of detention in Kianyaga (see p.102 of Schedule to Jt 18.8.17); it follows that the reference to Kianyaga Chief’s Camp should be reinstated as per Refused, as the Claimants now accept. Defendant’s objections. Hence it was neither discussed at the hearing on19 July 2017 nor did it appear in the schedule to the Court’s judgment of18 August 2017 . Whilst not an injury amendment, the parties have agreed that it be addressed by the Court at this stage in the proceedings. Not agreed. 1) The Court has refused all contested amendments to TC23. This re- amendment to TC23’s IPOC was objected to by the Defendant. The re- amendment should have been refused. 2) The effect of the re- amendment would be to leave certain key allegations, the original pleading.2) as above 3) as above; As per D, sub is repeated for §45 below. which are clearly intended to give rise to causes of action, materially unparticulari sed as to location. 3)The reamendment is hopeless, and/or visits prejudice on the Defendant who will be unable to research and then respond to the substance of the allegation accordingly. The Defendant repeats these submissions in respect of the corresponding re-amendment to §45(2). 45(2) (2) Caused, permitted, allowed or suffered the detention of the Claimant in intolerable conditions, that included extremes of temperature, hunger/starv ation, thirst, Not agreed. As immediately above. As immediately above. Para 45(2) was not ruled upon. However, the J’s ruling did not permit any disputed amendments relating to place of detention. It follows that the reference to “at Kianyaga”
“As a result of D’s alleged actions, the Claimant has suffered pain and injury …” so it is clear that this is being asserted as Refused. The proposed amendment is no more than the Claimants’ exposition of what they say is ‘fear’. “Fear” is already pleaded. increase as a result of the alleged events, there is no averment of any physical injury to TC24. If and to the extent that this amendment is alleged to be relevant to the later reference to “symptoms of psychological disorder” then it is resisted for the further reasons given below. part of TC 24’s injury. Fear of personal assault and fear as a result of witnessing the beatings of others is already pleaded: the effect of that on him physiologically was dealt with in the written medical evidence of Mr Heyworth [20-129 §2] where he said stress during the emergency would have contributed to hypertension; D asked Part 35 questions of the expert related to this conclusion [20-137 §11] and it was further elicited and explored during the medical evidence by both parties: [33-8083 – 33 -8116]. The D was on notice at the time that an amendment may be sought in relation to TC 24. Mr Heyworth did not maintain his evidence so far as early onset of hypertension was concerned, but that does not mean that what TC24 suffered in terms of the physiological Therefore nothing is gained by the proposed amendment. It is in the circumstances evidence not pleading. effects of fear was irrelevant. The issue of whether this amounts to injury and is recognised in law, is a matter of law and submission. The Cs are not required to rehearse submissions. The issue is whether the amendment is permissible, being in accordance with the judgment 27.4.17. C’s assert that it is permissible and in accordance with the judgment: 1) It is asserted as part of injury under the heading “Particulars of Injury” and “Assault/battery”, where it is alleged he has suffered pain and injury; 2) it is pleaded that he was in fear repeatedly; 3) the medical evidence indicates fear as a response to stress results in a biological response; 4) this response is well – recognised and results in a transient rising of blood pressure and heart rate; 4) TC 24 was aware of the biological effects: he describes living his life in in fear. This amendment is analogous to that permitted by the amendment to TC 31. Being kicked in the scrotum is consistent with being beaten all over the body; being subject to a biological fear response (“fight or flight”) is consistent with being put in fear repeatedly. He has notsuffered adiagnosedrecognisedpsychologicaldisorder butdescribedfeelings ofresentmentand anxiety,and that histime in thecamps waswasted, incommonwith othertest claimantswho had sufferedsymptoms ofpsychologicaldisorder 1. The legal significance 1) This amendment amounts to a pleading that TC24 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC24’s ‘symptoms of psychological disorder’ is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear. 1) The assertion is clear and based on Dr Davidsson’s conclusions [20166]. What he experienced is not irrelevant and can sound in damages. The extent to which it does so is a matter of submission. The amendment is within what is already pleaded: the TC pleads his response to being put in fear in a village on multiple occasions; the amendment clarifies that experience. of this is amatter forsubmission. 2)The reference to TC24’s “time in the camps” is not understood. TC24 alleges that he was detained at ‘Kabare Post’ and then at a village (see §§14-30 of the IPOC). 2) Yes, this should be “timein the village”
“The IPOC contains further amendments to change it into an estate claim, i.e. the insertion of three new paragraphs at the beginning and the replacement throughout of “Claimant” with “deceased Claimant”/”
“The injured finger was subsequently painful…”) 25 – Munyi Njoki 60 63) (new The deceased Claimant has suffered symptoms asset out in themedicalevidence butwhich do notsatisfy thecriteria for arecognisedpsychological injury. He hascurrent subclinical symptoms ofpost traumaticstress disorderandintermittentdepression 3. The deceased Claimant This amendment amounts to a pleading that TC25 has not suffered psychiatric / psychological injury. However, it goes on to assert that ‘the legal effect’ of TC25’s symptoms is ‘a matter for submission’. That is at best inchoate and at worst wholly unclear. The TC pleaded a psychological injury; the fact that symptoms do not, on examination by a jointly instructed medical expert, amount to a recognised psychological or psychiatric injury does not make them irrelevant nor unable to give rise to an award of compensation; the description of his symptoms was set out in the medical Amendment permitted in part. This is a “hybrid” between TC5/TC16 and TC9. Following the same principles and those set out in paragraphs 713 of the main judgment, the Amended pleading permitted is “The deceased Claimant has suffered symptoms whichdo not satisfy thecriteria for arecognised suffers flashbacks and ruminates about his experiences and in particular the interference with his family life and the severe treatment and punishment/a ssaults he suffered. Thelegal effect ofthis is a matterfor submission. evidence [ 21225 – 21-226]; D XX at 33- 8971 – 338983] on the relevance of his activities as Mau Mau to his mental state, the nature of the diagnosis and his symptoms. The amendment is not outside the scope of the pleading: it is an accurate description based on evidence and can sound in damages. psychological injury. The deceased Claimant sufferssuffered flashbacks and ruminates ruminated about his experiences and in particular the interference with his family life and the severe treatment and punishment/ass aults he suffered. The legal effectof this is a matter for submission.”
“The words “in the knowledge that the Claimant constituted a class of person likely to be injured thereby” are not deleted from this standard pleading in other cases. This may be a deletion made in error. The Defendant does not object to the additional deletion, but wishes to draw it to the attention of the Claimants and the court in case the deletion of the additional words is an error”. 157. Response: Yes, this is an error and the words will be reinstated in the final version. Test Claimant Paragraph Amended Amendment Agreed? Claimants’ Response Judge 34 – Anonymised 49 Particulars of injury – see above No 34 – Anonymised 49 he sufferedpain fromscorpion bites (as set out atparagraph 20herein) and 1) This is not an allegation of injury sustained as a consequenc e of an assault. 2) In any event, the amendmen t seeks to introduce a new injury into the Particulars of Injury, and so falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ 1) Agreed. 2) Not a new injury in the claim, as is made clear – the fact that he was bitten is set out §20 of the IPOC and it comes within being kept in poor conditions is part of his injury [under “during detention” 28-14]. On reflection, if the amendment is permitted, reference to scorpions is more appropriately made under this section. Amendment permitted save that “paragraph 20” should be “paragraph 19”. (i)As the Claimant s concede this amendm ent should be later in the Particula rs of Injury after “he was incarcera ted in successiv e camps in poor condition s”. (ii)In undertakin g and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury. paragrap h 19, dealing with condition s in Camp 30 (Compou nd 30) it is specifical ly alleged that the camp was infested with scorpions and that the Claimant was stung by them enduring pain for some 24 hours. (iii)There is no prejudice as a result of this amendm ent. was whippedduring forcedlabour (as setout atparagraph 37herein). It is not clear what (if any) injury is alleged to have occurred as a result of this allegation. As above; not a new injury; it has always been part of his claim. It is pleaded at §37 of the original IPOC; §49 (partics Amendment permitted. The Court accepts the Claimants’ response. To the extent that any injury is alleged, the amendment seeks to introduce a new injury into the Particulars of Injury, and so falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury. injury) states he was “assaulted on multiple occasions”
“I was slapped on my face and hit violently on my eye. This was so severe I started to suffer from eye problems from that time. I suffered an injury that led to me losing my good sight on right eye. My vision is blurred.” (My underlining). Although this may be regarded as ambiguous, it is not a clear allegation of blurring of vision in both eyes. (vii)As regards the MacKinnon Road incident, paragraph 38 of the witness statement makes no reference to any eye injury. This Test Claimant was not asked about eye injury when he gave evidence. Therefore there is no evidence from him to support the amendment. 34 – Anonymised 49 Symptoms from beatings to various parts of his body as alleged probably resulted in pain for approximately three to four months 1)The amendmen t is not limited or otherwise obviously referable to any particular pleaded incident of assault. The footnoted reference is to evidence given by Mr 1)PD 16 4.1(2) requires brief details of the personal injuries to be pleaded. He was assaulted on multiple occasions on various parts of his anatomy. D addresses the evidence on the basis of multiple assaults: 338144 “So you are again The amendment is allowed on the basis that it states “Symptoms from beatings from the various parts of his body as alleged resulted in pain for up to 3 to 4 months.”
“I’ve Amendment refused. See paragraphs 9-13 of the main judgment. The alleged diagnosis requires more than flashbacks and ruminations. It is not merely putting a medical label on those symptoms which are pleaded. If this diagnosis was to be relied on, it should have been pleaded after the medical with symptoms of flashbacks and rumination s only, i.e. well short of the component s of PTSD under the DSM or ICD criteria. 7)The amendmen t accordingl y seeks to introduce a new injury into the Particulars of Injury, and so falls outside the scope of permission given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertakin g and the court’s ruling in April relating to injuries not already falling indicated to you that I’m not cross examining on that. I accept that on the basis of the history that you were given, if you take it at face value, you were fully entitled to reach the conclusion that there was historical PTSD. What I am examining with you ….. is that there could be other events that would wholly support a diagnosis of PTSD”. 4) with all the psychiatric injuries, it was appropriate to conclude XX of the jointly instructed medical experts before making an application to amend. No prejudice to D. evidence was available in 2015 and not, after the Claimant and the doctors had given evidence, in late 2017. cf TC16 and TC22 above. within the Particulars of Injury. 8)The delay in amending the pleading to include this specific named psychiatric injury is egregious. 34 – Anonymised 49 The flashbacks involve the incidents where… he was forced to carry dead bodies and their guts spilled out onto him The use of plural forms for “bodies” and “their” is not supported by the evidence. Prof. Mezey’s evidence was that the flashbacks related to “the allegation of carrying a dead man and his intestines spilling over the claimant” (33-8792, lines 9-12) He was forced to carry dead bodies (plural) but it is agreed that only one instance of the guts spilling out, giving rise to the flashback to that incident, is described. Should the amendment be permitted, this will be made clear i.e. “where theguts of a deadman he wasforced to carryspilled outonto him”