Mr Justice Morland : Judgment
- On the 5th September 1999 the claimant, then aged 46, was a rear seat passenger in his chauffeur – driven car, when it was involved in a head on collision with a car driven by the defendant who has admitted liability. He suffered a whiplash, hyper extension injury to the neck, which already had severe pre-existing degeneration at C5/6 and C6/7 levels. It was followed by vertebrectomy of C6 on the 4th November 1999. Although the surgery was technically successful, the claimant had developed a post-traumatic stress disorder (P.T.S.D.) and has a persistent depressive illness. In consequence the claimant has not effectively worked since the accident.
- By his amended schedule of loss and damage dated the 1st August 2002 the claimant claimed a total of £2,782,164.76p excluding general damages and interest thereon.
- Mr Nigel Baker Q.C. on behalf of the defendant vigorously contested the general and detailed bases of the claimant's case. The main thrust of his submissions was that the claimant was very vulnerable when the accident occurred. Physically the degenerative condition of his neck was on a knife-edge waiting for a jolt, which would lead to deterioration and inevitable cervical surgery. Psychologically the claimant was predisposed to depression. However as Mr Baker acknowledged a tortfeasor injures his victim as he finds him.
- More valid were Mr Baker's submissions that the claimant's alleged loss of earnings was speculative and exaggerated.
The Accident of the 5th September 1999.
- On the 15th September 1999 the claimant wrote out a statement describing the circumstances of the accident and its immediate aftermath. The manuscript is in bundle 5 pages 338-340. The transcript reads: -
"We left Arundel around 10.00 am on Sept 5 heading for a lunch party at Bibury then to drop Catherine back at St Mary's Ascot for the start of the new school year. Having reached Salisbury in good time, Bernie Denyer (he was driving my car) was moving out of familiar territory and we missed a turning at which I took up a navigatory role. He had decided that Salisbury then the A346 was the best route to Cirencester given the problems with the Newbury-by-pass. The trip to Marlborough on the A.346 was frustratingly delayed by tractors etc. but we reached the outskirts of Swindon at 12.15 in good time for our lunch. I saw an Esso station on our left and asked Bernie to pull over for petrol, a loo stop and a snack for Betty who was hungry. Having dwelt with all these requirements, we did not have a direct route back onto the A.346 but had to take a side street New Road. We had just pulled out of that road and were travelling at 10-15 mph when I saw a red car coming off the A346 at greatly excessive speed, 20-45 mph. The driver was not in control of the steering wheel but slumped to the left. It was clear to me already that a collision was inevitable. I called out "Bernie look out". My wife noticed the situation with an explanation, oh shit. My thoughts were that I had no control over events and that I would have to accept whatever were the results at this moment. Immediately afterwards there was a massive thud. I was in the left rear passenger seat and turned to my right with my hand out to Elizabeth who had only a lap belt. She was thrown violently forward, her spectacles leaping off her eyes and with an Edward Munch Scream expression on her face. My wife was thrown forward and to the right, striking her head. Elizabeth then was thrown forward again as the momentum of the impact reverberated. I had no sense of my own impact except a horror that I had no way of seeing the implications for Catherine directly in front of me in the front passenger seat. I raised my hand and saw the other driver with a blooded face in a "nodding" situation. I asked Catherine are you all right? Yes, Bernie are you all right yes and they both said yes to my eternal relief and my wife also asked the same question at virtually the same time. Elizabeth was in a bad way between us. After a pause of a moment or two my wife said, "get out" which we all did. She went over to check on the other driver. I was with Elizabeth who went down on the ground, with her legs twitching. There were no witnesses but another car had come out of the garage I think and asked if we needed an ambulance and I said yes. The next 10 minutes were very hazy. Elizabeth was throwing up, all in a daze, the other driver saying it was all his fault, the cars spinning off liquids etc. I yelled at Bernie to turn off the motor – the other driver dazed and bloodied yelled that he had. I was in a muck sweat.
After what seemed an eternity police cars began arriving and then paramedics. Elizabeth was still in a bad way. I was calling BMW Emergency Services and also put in a call to the Clarks that we had had an accident and would not make the party.
The paramedics decided that Betty must go…to PMH. I had to make the decision in the car and the logistics. Bernie and I struggled with the decision, then eventually decided to stay with the car (trunk etc.) Catherine our elder daughter burst into tears finally when I was on the telephone.
The emergency services were all helpful. (My wife had heard the other driver say that he had been at the Golf Club and asked the police to breathalyse him. They did not breathalyse Bernie. My daughter travelled to hospital with the other driver and was very…discontented…to do it. At the hospital later his wife asked if we had been inconvenienced.) The paramedics feared internal injuries to Elizabeth but on examination it was not felt necessary to detain her.
I had no pain at the time, this came on a day or 2 later. We got home eventually and crawled into bed, after getting Catherine to school. The trip back from Heathrow to Arundel was fraught.
The next 10 days have been a haze of pain, discomfort and shock. I have not felt up to writing this description of events until today.
Signed
15/9/99"
- I have no hesitation in accepting this account of the accident as both truthful and accurate.
- Mr Baker described the accident as unremarkable. I do not accept this description. In my judgment it must have been a most frightening experience for the claimant. Seated in the back seat he was powerless to do anything. Yet he was in a position to see the imminent collision. All he could do was to attempt to shield his daughter. The combined speed of the two vehicles was about 50 mph. The jolting effect on the claimant's already degenerated cervical spine between levels C5 and C7 must have been significant. With his predisposition to depression the development of a post – traumatic stress disorder and a clinical depression were not to be unexpected.
The Claimant's Medical History Immediately Post Accident.
- The claimant was advised by a solicitor on Tuesday the 7th September 1999 to keep a daily diary. This he did in two notebooks, which are transcribed in the green bundle pages 3107 to 3114. Although inevitably introspective I accept that they give a fair picture of the claimant's symptoms from the date of the accident to the 27th October 1999.
- The notes of his G.P. read:-
"7/9/99 R.T.A. Back seat passenger 5/9/99
Head on @ approx 50 mph. Seat belt & head restraint. No obvious injury @ time since stiffness and discomfort over back of neck and shoulders with some limitation of movement particularly to left.
Also tender under (R) costal margin compatible with seat belt bruising.
No neurological deficit. Advised.
10/9/99/ Neck still stiff ++. No neuro symptoms or localysing signs "Nerves shot".
? Physio ® Ibuprofen 600mg tds.
17/9/99 Continues with stiffness + pain. Refer PP – Donald McCutchan"
- After the referral Mr McCutchan, an orthopaedic and special surgeon, wrote on the 20th September 1999 to the claimant's G.P.: -
"On examination he stands with physiological curvature of his spinal column. He has a good range of flexion and extension, and of rotation when distracted. There is poor rotation on formal examination and also poor lateral flexion to either side.
His shoulders move well. His right tricep reflex may be reduced but in other respects his upper limb neurology is normal.
Plain X-rays commissioned this afternoon show severe degenerative change in the low cervical spine, but no fracture.
He should certainly persist with physiotherapy in the first instance. He should monitor the situation with his left arm, and if he continues to get left arm pain beyond two or three weeks, then he should have a MRI scan.
I have predicted that it will be at least eight weeks before he makes any recognisable improvement. He is aware of the prognosis for these injuries is sometimes poor."
- He was first seen by Mr Peter Hamlyn, a consultant neurological and spinal surgeon at Barts on the 5th October 1999. On initial assessment Mr Hamlyn concluded that the claimant had a quite marked post traumatic stress disorder with a presumed cord contusion. On the 4th November 1999 Mr Hamlyn carried out surgery following the claimant's continuing symptoms of progressive spastic paraparesis. The procedure, which was technically successful, was C6 vertebrectomy, iliac crest grafting and anterior cervical plating. On surgery Mr Hamlyn found: -
"..markedly degenerate discs, gross cord compression, thinned and translucent dura. C6/7 disc level was associated with the most compression though it was very tight throughout."
- When interviewed and examined on the 19th July 2000 by Mr Hamlyn (see his report black bundle pages 2005-2014), the claimant was complaining of the following symptoms in summary, pain in the neck radiating to the left shoulder, left arm pain, numbness affecting both hands, pins and needles, weakness affecting the arms and legs, incoordination of the arms and legs, sleep disturbance, depression and anxiety, disturbed sexual function, bladder dysfunction and episodes of profound sweating.
- Mr Hamlyn's then opinion, which I accept, was that all of the claimant's physical and psychiatric symptoms were attributable to the accident. In my judgment the overall sequelae of accident can be described fairly as moderately severe.
- During the trial the three neurological specialists, Mr Hamlyn, the operating surgeon, Mr Ransford, the court's expert, and Dr Sambrook, met and signed the following document.
"1. We are agreed that there is no neurological reason, why he should not return to work and the probability is that neurologically he will not deteriorate in the future.
2. We are agreed that he has had a perfectly satisfactory operation and that his bone and joint disease (in the neck) does not prevent him working.
3. `We agree that the claimants current problems are his perception of pain and his psychological disorder. These two elements have to be judged together. We are agreed that the physical element of pain will not change. We are agreed therefore that if the psychological element resolves he will be left with the physical pain. We are agreed that the majority of patients with his condition and post surgery would not have sufficient pain to prevent office work.
4. The experts stand by their views on what would have happened had the accident not occurred. They are very different but all are agreed that there is no literature to help resolve this matter.
5. We are agreed that his spinal problems flowed from the accident though prior to that he had advanced degenerative disease of his cervical spine with cord distortion. Without this disease it is very probable that these problems would not have followed the accident."
- They were unable to agree when, if at all, during the claimant's lifetime the cervical surgery would have been required having regard to his advanced degenerative disease.
- On the 19th November 2002 Mr Hamlyn and Dr Sambrook signed a document entitled "Points of Agreement and Disagreement" (black bundle p.2045-2053). In that document is written: -
"Dr Sambrook is of the view that the degenerative changes were substantially more than is average for an individual of Mr Collins age and therefore that the probability (greater that fifty percent) was that surgery would be required within three to five years of the index accident had this accident not occurred.
Mr Hamlyn by contrast is of the opinion that the degeneration changes were not extreme and therefore that the balance probability greatly favours the surgery not being required within the natural lifetime of Mr Collins i.e.: the probability was less that fifty percent. "
- In his oral evidence Mr Hamlyn expressed the opinion that the vast majority of the population or at least a very large number of people of the claimant's age at 46 would have the same degree of cervical degenerative disease as the claimant and would go through life without the need for surgery and without suffering from severe symptoms. He said that it would have to be an extreme event to necessitate surgery. Despite Mr Irwin's submission that special weight should be attached to Mr Hamlyn's evidence because he was the treating surgeon who saw the state of the claimant's cervical spine on operation, I found Mr Hamlyn's evidence on this point wholly unconvincing and I reject it.
- In his oral evidence Dr Sambrook maintained his opinion that cervical surgery would in any event have become necessary in 3-5 years. He said that the claimant's spinal cord was most probably distorted. He laid great stress on the absence of neurological findings by the claimant's G.P. and Mr McCutchan. He said that a jolt in the accident, on the probabilities, had pushed degenerative disc material into the spinal cord causing greater distortion to the spinal cord and this had precipitated the need for surgery two months later. Mr Baker submitted that the absence of immediate neurological findings strongly supported Dr Sambrook's opinion that cervical surgery would have been required in 3-5 years.
- On the 25th November 2002 Mr Ransford wrote: -
"With regard to the probability of acceleration. I am of the opinion that the spinal cord compression in the claimant's neck was present prior to the accident of 5.9.1999. I am also of the opinion that it needed such an accident as the claimant suffered to produce obvious clinical symptoms from this compression. It is probably that there were minor symptoms not noticed by the claimant before the accident but that the accident made them obvious and it was this significant increase in the symptoms that caused the claimant to seek neurosurgical care. Clearly, without the accident the claimant would not have undergone surgery on 3.11.1999 two months after the accident.
Mr Hamlyn is of the opinion that, had it not been for the accident, the claimant would never have had any symptoms. Dr Sambrook felt that there was a three to five year acceleration. I myself was more cautious but I thought it likely that within 10 to 15 years the claimant would have suffered a jerking injury to the neck such as from a fall and, on the balance of probabilities, there would have been a significant and now conscious appreciation of abnormal neurological symptoms leading to neurosurgical advice."
- In my judgment, albeit that Mr Hamlyn was the treating surgeon, he took an unrealistically rosy view of the claimant's prognosis if he had not suffered injury on the 5th September 1999. On the other hand I consider that Dr Sambrook's prognosis was unduly pessimistic. I was particularly impressed by Mr Ransford's objectivity and realism.
- I consider that the probabilities would have been as follows: -
- By September 1999 the claimant already had gross degeneration of the cervical spine. At any time a fall at tennis or skiing could jolt his neck exacerbating the degenerative condition perhaps critically. The likelihood is that by his mid-fifties the claimant would have been experiencing painful symptoms and would have had to curb his sporting activities. By about September 2009 the need for cervical surgery to reduce pain would have occurred.
- However, I do not consider that the need for cervical surgery or the surgery itself would have precipitated any depressive illness or had any significant effect on the claimant's earning capacity. But the claimant is entitled to compensation for the pain suffering and loss of amenity occurring about 10 years earlier than it would have done but for the accident of the 5th September 1999. Although the surgery was technically successful, it is agreed that the claimant has continued to suffer a degree of genuine physical pain. That is physical pain to be suffered for a period of about 10 years earlier than would otherwise have been the case.
The Claimant's Pre-Accident Life–Style and Career.
- The claimant and his wife are both Australian from very affluent backgrounds. His wife's income is supplemented by family trusts. He has expectations of capital receipts. Their home since before the accident has been a large country house with a substantial garden leased from the Arundel Estate. They had and have a live-in couple, a chef and housekeeper, a gardener and chauffeur. Their daughters board at a school in Ascot.
- The claimant was a keen and high-level sportsman. He skied. He played lawn tennis. It was at real tennis that he excelled winning both the Australian and American open doubles championships. His sporting activities may explain the gross degenerative changes in his cervical spine.
- In his early working life after training in law the claimant worked for stockbrokers and then moved to New York into investment banking. There he met Mr Peter Hannen whose family had for generations been principal proprietors of Christie's the auctioneers. Christies went public and the Hannen family had many millions of pounds to invest. The claimant and Mr Peter Hannen went into partnership. The claimant had great expertise in equities and company analysis. Mr Peter Hannen's expertise was in the international commodity markets and derivatives. They secured the contract to manage the Hannen fortune. But it was not only as a financial adviser to the Hannen family that the claimant earned his living. He had substantial investment opportunities through his contacts with friends or people who became friends. They were extremely rich people associating with the extremely rich. Mr Marvin Bush, the President's brother, who has an investment business in Virginia, Mr Rob Kerr, a Texan oil and gas entrepreneur, and Mr Matthew Handbury, Mr Rupert Murdoch's nephew, the principal owner of Murdoch Magazines Australia, and whose brother is a very large landowner in Victoria and South Australia, all giving evidence by video link. They all spoke highly of the claimant's investment analysis skills and of the business opportunities which they expected would have come the claimant's way but for his accident and its consequences.
- By the time of the accident the claimant had developed a niche investment career dealing with people with similar backgrounds to himself. He was not involved in large-scale corporate investment as enjoyed by city high fliers, with all the accompanying stresses. He worked three days a week from home in Arundel only going to the London office he shared with Mr Peter Hannen twice a week. No doubt his working life was more enjoyable and less stressful than that of someone working 12 hours or more a day with merchant bankers in the city but it was potentially far less rewarding. Indeed his net pre-accident income after tax was surprisingly modest. Probably his career development was a reflection that it suited his vulnerable psychological make-up.
- Prior to the accident there were certainly signs that he was over strained and had been subjected to a number of stress-factors, (see for example his G.P.'s note of 15 December 1998 and letter of the 18th December 1998 – blue medical documents bundle pages 1 and 32).
- Mr Rob Kerr, the President of Kerrco, first met the claimant in 1992 in London through their daughters attending the same school in Kensington. They became personal friends and business associates.
- Mr Kerr was very impressed by the claimant' intellectual approach. He was able to understand Mr Kerr's business very well "He would dig deep into a subject matter (see Mr Kerr's testimonial of 16th February 1999- bundle 5 p.589).
- They began working together in November 1994 when Kerrco assembled a partnership, The Old Rivers Partners, to take over an Exxon gas project outside Houston. The claimant introduced the Hannen family as partners.
- The claimant came to Houston regularly. He was involved in "due diligence", "research", helping to "devise strategy and structure in a complicated way" both in relation to investments and their tax implications. The claimant also became involved in Michelangelo Partners an oil/gas project in South Texas of which Kerrco was the lead partner. Mr Kerr described this project as very profitable.
- Kerrco has an interest in over 200 wells.
- In November 1998 the claimant became a director of Kerrco (bundle 5 p.379). He was already personally a partner in Old River, his accumulative gross distribution at the 28th September 1998 being $28,266 (bundle 5 p.377). On 1st September 1999 the claimant was granted a stock option on 6,000 shares in Kerrco (bundle 5 p.454).
- It is a measure of the claimant's high standing with Mr Kerr and Mr Kerr's hope for his recovery that Kerrco continued to pay the claimant albeit on a decreasing scale until the end of 2001 (for details see green bundle page 3143 paragraph 12).
- A valuable indication of the claimant's reputation as an investment consultant, the widespread nature of his business contacts and the potential of these contacts as a source of financial reward to him, is his involvement in the Winston Hedged Equity Fund Ltd based in Virginia. Mr Marvin Bush is a director and the investment adviser is Winston Capital Management LLC of which Mr Bush is President.
- An explanatory memorandum in relation to an offering of common shares were published on the 1st October 1999, just over a month after the claimant's accident. It was envisaged that the minimum initial investment by a shareholder would be $500,000.
- Winston Capital Management had gone from zero in 1995 to having on the 1st October 2002 $785M under management.
- The documents relating to the offer are to be found in bundle 5 pages 456-519.
- The claimant was with Mr Aburdene one of the two initial members of the Advisory Committee to the Advisor, Winston Capital Management.
- I quote from the memorandum to illustrate the sphere of the claimant's expertise.
"Advisory Committee.
The Advisor has formed an Advisory Committee with respect to the Fund, which will be composed of two or more experienced securities professionals selected by the Investment Managers from time to time and approved by the Fund's directors. The role of members of the Advisory Committee will be to consult and advise the Advisor from time to time on various investment issues involving the Fund, as requested by the Advisor in its discretion. Members of the Advisory Committee may be consulted and involved, to the extent requested by the Advisor and as mutually agreed, in such matters as macroeconomic or overall market perspectives, insights as to particular markets or perspectives, portfolio disciplines and other matters.
Members of the Advisory Committee will serve at the pleasure of the Fund's directors and will not be required to devote any minimum time to the business of the Fund. Advisory Committee members will serve an advisory function only and will have no legal authority or responsibility with respect to any matter involving the Fund or the Advisor. Advisory Committee members will be entitled to indemnification from the Fund as provided in its Articles of Association.
The initial members of the Advisory Committee are as follows:
David Collins. For the past ten years, Mr Collins has been a partner in an investment consulting firm in London. Previously he worked for Morgan Stanley in New York and London. Mr Collins qualified as a lawyer in Australia and has worked in the investment business for the past 21 years. He currently acts as a Director for numerous companies in the United Kingdom, the United States and Australia.
Elias Aburdene Mr Aburdene is President of Rock Creek Corporation based in Washington D.C. He previously worked for Citibank and Bank of America Corporation. Mr Aburdene received his B.A. in Economics (cum laude) from the University of Connecticut and possesses a Masters Degree in International Economics from the School of Foreign Services at Georgetown University. He serves as a Director for several corporations
Such members may be entitled to appropriate compensation from the Fund as the directors of the Fund may determine. The Fund may change the composition of the Advisory Committee, or discontinue the use of an advisory committee, at any time without notice to its shareholders"
- In fact the claimant has received no remuneration from Mr Bush or his organisation but Mr Aburdene has been receiving $150,000 a year. In his oral evidence Mr Bush said that but for his accident the claimant would in all probability have received remuneration. Mr Aburdene's position was not entirely comparable because he was based in Washington but for the claimant, Mr Bush said, £10,000 a year would be a low figure.
- Mr Bush had first met the claimant in New York being introduced by Mr Rob Kerr who had grown up with Mr Bush in Houston, Texas. That was in 1993.
- Mr Bush was a director of Kerrco Inc. Mr Kerr's oil and gas exploration and production company.
- Over the following years Mr Bush "developed a very solid relationship" with the claimant. He invited him on several occasions to his parents' home at Kennebunkport Maine. He had a high regard for his "analytical understanding of the nuances of the oil and gas industry". He used him for "due diligence" surveys. As he put it, "David asked the right questions".
The Effect of the Accident as Seen by His Family and Business Friends.
- The claimant's daughter described him as becoming very closed up, that his train of thought is disjointed and that he has to use his arms to get his words out.
- The claimant's wife spoke of his loss of concentration and forgetfulness. In her written statement dated 2nd May 2002 she said:
"As to his speech, since the accident he has suffered from two main problems namely stammering and the inability on occasions to find and say the word he wishes to use. His speech problems have improved in the last year or so but before that it was bad. However, David still has difficulties on occasions particularly if he is under stress and in pain."
- Graphically in her evidence Mrs Collins said "Yesterday in court was not the man I knew. He was a bit zombie like – like a caged animal not coping."
- Mr Rob Kerr described a lunch with the claimant saying that he put in quite an effort but said much less than normally. He had much more difficulty in focussing and quickly left after lunch.
- Mr Bush said: -
"I had one lunch with David Collins when I was struck by his appearance. I was disheartened by what it had done physically and it's a great shame we can't work with him"
- Mr Matthew Handbury said that when he saw the claimant in 2001 he was a person resigned to his situation, his business affairs were at a standstill and it was a very difficult situation for him to be in. He described the claimant's conversation as very ponderous. His previous curious and exploratory mind was not evident. He would clearly have been incapable of giving clear advice to Mr Handbury about projects in Australia for which he would have been well-rewarded. As Mr Handbury put it: - "David would have been first on the list".
The Claimant's Psychiatric Problems.
- I heard evidence form Dr Jeffrey Roberts, the claimant's treating psychiatrist whose statements are in the green bundle pages 3163-3189, from Dr Cosmo Hallstrom, called by the claimant as his expert consultant psychiatrist, whose reports are in the black bundle pages 2118-2144, and from Dr Jack Steinert, called by the defendant as his expert consultant psychiatrist, whose reports are in the black bundle pages 2145-2157D.
- I have also read the psychological report dated the 17th August 2001 from Dr Nicholas Leng, black bundle pages 2163-2174. The claimant's then current complaints were: -
"I asked him to give an account of any current complaints. He has neck pain on a variable basis, though this has been easing over the last few months. He complains of pins and needles and what he described as "sizzling" in his legs, and to some extent in his arms too. On a variable basis his balance is poor. He told me that he has been diagnosed as suffering from reactive depression and is currently being treated for that by a psychiatrist. In association with this he suffers with poor concentration and memory.
To specific questions he described his mood as flat, he is emotionally rather unresponsive, except that his wife has noted that when watching films on television, for example, he is easily roused to tears. He reports diminished interest and loss of enjoyment for daily activities. He has put on only a small amount of weight, presumably due to reduced activity, but his appetite is normal. His sleep is variable, but he has loss of energy and fatiguability. He feels more anxious and worried than he used to. At first after this accident he felt very anxious travelling in cars which has been improving, but this remains to a degree."
- Dr Leng carried out a variety of neuropsychological tests. On the Restandardised National Adult Reading Test the claimant obtained a score equivalent to an IQ of 123 within the superior range. In the intellectual function tests overall he scored at the high average level (IQ 119). However, memory function tests revealed significant impairments with results varying between IQ equivalents from 95 to as low as 70. His performance on a test of digit symbol substitution was "low average (IQ 85) significantly impaired" which related to executive functions.
- Dr Leng's conclusion was that the claimant was suffering from a moderate depression though NOT with post traumatic stress disorder. Dr Leng wrote: -
"Mr Collins does show evidence of impairment in his attention, concentration, speed and efficiency. In the absence of any neurological disorder, which has caused any brain damage, then these deficiencies are likely to be product of his current depression. It is in keeping with these findings that he has had difficulty coping with his normal occupation"
- I have read the reports of Mr Colin Blowers, a behaviour therapist, to whom the claimant was referred by Dr Hallstrom. Mr Blowers's statements are in the green bundle pages 3190-3206. Mr Blowers gave the opinion that the claimant "may not require intensive cognitive behavioural therapy" but he envisaged that "he will require at least one session per month for the first year after the court case is resolved".
- Mr Blowers described on the 6th September 2002 the claimant's current status:
"From a psychological point of view there has been some improvement. The "flash-backs" and vivid memories remain but they are much less frequent and disturbing and he continues to avoid driving or travelling in the rear seat of a vehicle. Falling asleep remains difficult taking up to two and half hours and he wakes frequently. Reduced energy levels mean that when he finally gets up he does so in stages i.e. brush teeth, go and lay down, shave, go and lay down, etc. He is no longer able to race into the day, as he would have done prior to the accident. In fact, he can no longer race to do anything. He still has periods of irritability but this is diminishing, concentrating remains difficult but again has improved. Mr Collins is less hypervigilant but despite his efforts he remains a terrible passenger, constantly pointing out perceived hazards and anticipating an accident at every turn. He continues to have an exaggerated startle response but this to has diminished "
- There has been a measure of agreement between the psychiatrists.
- Dr Hallstrom and Dr Steinert made a joint statement on the 27th March 2002 in which they said: -
"Predisposing Factors
3. Both doctors are in agreement that there are psychological predisposing factors present in the case of Mr Collins, which make him more vulnerable to developing depressions than other people.
4. Dr Hallstrom emphasises there is no indication that he would have developed a depressive illness, had he not been involved in the material accident.
Mood Problems
5. Both doctors are agreed that Mr Collins developed emotional difficulties, which are secondary to the physical problems he developed as a direct consequence of the accident. This condition is a major depressive illness, which Dr Hallstrom describes as "of moderate severity" and Dr Steinert describes as "severe".
6. Having carefully considered Dr Hallstrom's report and other evidence, Dr Steinert is now of the opinion that the Major Depression is a condition independent of the PTSD he suffered. The predisposing factors which he considers have contributed to the development of this disorder are his prior and present financial problems, the RTA itself, and the consequential spinal condition and the neck pain which he suffers. An outstanding and continuing stressor is the fact that his wife and child both have (as he is told) Fabry's Disease, which is both serious and has a poor prognosis for life. It is genetically determined and essentially untreatable. For these reasons he also believes that the depression would have on the balance of probability been likely to occur in any case, although later. Dr Hallstrom notes that his wife had Fabry's disease for many years prior to the accident and Mr Collins was not depressed. He was functioning normally prior to the accident. According to Mr Collins his business difficulties prior to the accident had been overcome and his business was doing well.
Post Traumatic Stress Disorder.
7. Both doctors agree that Mr Collins developed a Post Traumatic Stress Disorder as a direct consequence of the accident. Dr Hallstrom considers it to be of "moderate severity". Dr Steinert believes it to have been mild. He points out that Dr Leng Chartered Clinical Psychologist could find no evidence of this condition in August 2001.
Phobia for driving.
8. Dr Hallstrom notes that as a result of the accident Mr Collins has also developed a phobia of travelling in cars and aeroplanes, although he accepts that may have improved recently.
9. Dr Steinert does not think the symptoms he has had have ever met the requirement for this diagnosis
Ability to Work.
10. Dr Halstrom notes that as a consequence of his pain and also his depressive illness and possibly his Post Traumatic Stress Disorder, Mr Collins us unable to pursue his business interests. Dr Steinert agrees that his depression is such that he could not be expected to follow his normal occupation for the time being.
Prognosis.
11. Dr Hallstrom notes that it is now two and a half years since the accident and since the pain is unlikely to improve, according to the neurosurgeons, it is unlikely that there will be any significant improvement in Mr Collins' depressive state although he is benefiting from Cognitive Behavioural Therapy with Colin Blowers. This may improve his Post Traumatic Stress Disorder but is unlikely to improve his depression significantly which results as a direct consequence of his chronic pain. Dr Steinert says that the pain and depression are intertwined. He agrees with Mr Hamlyn who in May 2001 reported inter alia that his physical and psychological symptoms exacerbate each other. He believes that if the depression were treated more vigorously with appropriate antidepressants the prognosis would be so much the better. Dr Hallstrom notes that Mr Collins had been taking moderately high doses of Cipramil and other antidepressants in the past. He is also having CBT currently, so the prospect of significant improvement in his depression is slight.
12. Dr Steinert notes that Mr Collins is beginning to improve and believes that Mr Collins will continue to improve subject of continuing improvement in his physical condition. He notes the improvement already recorded by Mr Ransford in April/May 2001."
- The claimant's psychological problems consequent upon the accident of the 5th September 1999 have been persistent. There has been a degree of recovery but progress has not been steady due to side effects of anti-depressant medication.
- Dr Roberts prescribed citalipram (see his letter of 7th October 1999 (blue medical document bundle p.153)).
- Dr Roberts stopped citalipram because of the side effects (see letter of 11th September 2000 (blue medical document bundle p.159)). Mr Hamlyn had written on the 23rd August 2000: -
"I was pleased to review Mr Collins with Professor Watkins today.
Essentially we are both of the view that his spinal cord signs which were definite prior to his operation (sensory level, clonus and spasticity) are now not present. What he has is a fine tremor and a gait disturbance which looks more central. Whilst this may be as a result of his anxiety it equally seems likely that this is a side effect of his anxiolytic drugs. His symptoms are associated with sexual failure and a great deal of lethargy. I have written to Dr Roberts asking if he would consider stopping his anti-depressant medications or treating him with a different family."
- There is a wide range of anti-depressant drugs all of which may cause side effects. In their evidence the psychiatrists said that they expected that by trial and error a drug would be found from the range of drugs available which would result in a degree of recovery (see Dr Hallstrom's letter of the 5th November 2001. Black bundle p.2143).
- During the trial the psychiatrists met and discussed prognosis and answered questions: -
"What effect do we anticipate such treatment to have?
Overall Dr Steinert says 60% chance of success, as his recovery from the spinal injury is substantial.
Dr Roberts says 20 –30% contingent on the degree of physical recovery.
Dr Hallstrom says approximately 30% bearing in mind he has had substantial treatment already including high doses of anti depressants
From what condition does he suffer now?
(1) depression of moderate to severe degree
(2) Post traumatic stress disorder – resolved – but some residual symptoms
(3) Pain syndrome – where the depression makes the experience of the pain worse.
(B) What are their causes?
PTSD. The accident
Depression – The injury mainly – the PTSD
The Pain – Circular
(C) What treatment should be given?
Anti depressant medication given with care
Prognosis – with regard to social Life + Family life.
All agree – Substantial improvement.
Working Capability
Dr Steinert 60% chance of success as his recovery (now the spinal injury is substantial.
Dr Roberts is less optimistic of returning to full working capacity a 20% chance of full recovery.
Dr Hallstrom says may improve mentally but unlikely to re-establish himself professionally."
- In his oral evidence Dr Roberts said that but for the accident he could see no reason why the claimant should ever have suffered from PTSD or depression. In his opinion if the claimant had to have had cervical surgery either as the result of a fall on the tennis court or as the result of progressive degeneration and pain in the cervical spine, the claimant would have been fed up about it but would not have suffered from clinical depression. In Dr Robert's opinion the PTSD had recovered save from some persistent car phobia. He expected the end of the litigation to be a helpful factor. He thought that the claimant had a 20% to 30% chance of recovery but only to 80%. The chance of 100% recovery was almost negligible.
- In his oral evidence Dr Hallstrom said that he had not in substance any disagreement with Dr Roberts. In his opinion in cases of severe depressive illness 70% of people should make a complete recovery but the prognosis gets worse with time. He did not think that the claimant was exaggerating symptoms if anything he was underplaying them.
- Dr Steinert in his oral evidence advocated that the claimant should be actively treated with anti-depressants and had a 60% chance of 100% recovery. He said that having seen and heard the claimant in the witness box he was still very depressed. He had made a full recovery from PTSD but had been left with avoidance symptoms.
General Damages for Pain, Suffering and Loss of Amenity.
- It is agreed that the claimant has suffered PTSD since September 1999 but it has been largely resolved for very many months. All that persists is an understandable car avoidance syndrome, which is likely to remain.
- The most serious feature of the claimant's suffering has been the moderately severe depression which as yet has not been amenable to treatment. The psychiatrists are agreed that there is the possibility of recovery with vigorous anti-depressant medication. The psychiatrists could not agree as to the percentage chances of recovery or complete recovery.
- In my judgment with appropriate medication, which will be found by trial and error, the probabilities are that within the next two years the claimant will make a substantial but incomplete recovery from his depression sufficient to enable him to lead a comparatively normal life. The recovery will be such that he will be able to enjoy life and resume his occupation as an investment analyst and consultant on a limited basis.
- Taking into account the accelerated physical pain, the P.T.S.D. and the moderately severe depression lasting for upwards of 5 years from which recovery will be incomplete I assess general damages at £35,000.
The Claimant's probable Future Career but for the Accident.
- Although the claimant had a pre-disposition to a depressive illness and was vulnerable to stress factors, in my judgment absent a strikingly traumatic event such as the accident of the 5th September 1999 it is improbable that the claimant would have suffered a depressive illness disabling him from pursuing his career.
- By September 1999 the stress factors were receding. His wife's medical condition had been stabilised. The losses on the property market were in the past. The family were happily settled in Arundel. His business, Collins and Hannen, was successfully relocated in London with the prospect of steady progression. Working conditions were not onerous with three days working from home but stimulating with his high level business contacts in America and Australia.
- In my judgment the claimant would in all probability have continued working as an investment analyst and consultant in his own limited niche earning the same sort of income without any dramatic rises or falls until the age of 65.
- Additionally there would have been a significant chance that from time to time he would have been offered remunerative directorships or shares options in companies in which investments had been made by him for others he had advised. When this might have occurred, what amounts of money might be involved and how long lasting any reward might have been is a matter of speculation. I therefore do not consider a multiplicand/multiplier approach applicable and shall award a global sum for the loss of this significant chance of £300,000 over and above the loss of his regular income. I have regard to the incidence of income tax in reaching the figure of £300,000.
Loss of Earnings.
- In my judgment it will take the claimant about two years from now to recover sufficiently from his depression so as to be able to resume work as an investment analyst and consultant albeit to a limited extent. I therefore shall allow complete loss of earnings from now for a period of two years.
- Thereafter because the claimant will have been not working for about 5½ years he is very unlikely to be able to re-establish his old contacts to the former extent and his prospects of establishing a new client base limited. Nevertheless bearing mind the claimant's ability and expertise I consider that he should be able to earn £50,000 net a year before tax.
- The claimant and Mr Peter Hannen began working together as a partnership in 1988. Their principal client was the Hannen family upon which they concentrated their efforts. In December 1998 Hannen and Collins Ltd was incorporated in England essentially carrying on what had been done during the previous ten years. The various name changes and places of business during those ten years are noted in Mr Dickerson's statement (white bundle p.4007-4009).
- In his written statement of the 23rd May 2001 Mr Hannen set out the planned salary structure for the claimant and himself: -
"In December 1998 Hannen and Collins was incorporated having previously been called Family Asset Managers Limited (Bermuda). Prior to this it had been agreed and documented that for the year 1st April 1999 to 31st March 2000 David would receive a salary of £45,000.00 per annum. This would increase by £20,000.00 per annum in the next three years up to £105,000.00 per annum. In addition David was receiving additional income from companies of which he was a director and we anticipated that his gross income would be £124,000.00. I would have a staggered wage increase of £50,000.00 for the year ended 31st March 2000 increasing to £52,000.00 £55,000.00 and £65,000.00 in the following three years and my total income was envisaged to be £119,000.00. David and I were free within this period to pursue our own business interests outside that of the company."
- Having heard the oral evidence of the claimant and Mr Hannen I am satisfied that after the fourth year although the incremental salary steps would cease it was envisaged that both of them could pursue their own business interests outside the company as well as receiving director's fees from outside companies.
- During the trial much time was spent trying to analyse and understand documents, which I am satisfied, came into existence at about the time of Hannen and Collins Ltd's incorporation at the end of 1998.
- In bundle 1 on page 64 is a document setting out what is said to be the claimant's approximate income of £202,358 in typescript and then in heavy ink in Mr Peter Hannen's writing the claimant's "possible expenses" excluding his 2/3 office expense they total £108,700 "includes staff, cook, drivers etc". The office charge was £50,000. The gross sum before tax required is put at £217,800.
- In bundle 5 the relevant pages are 586,587,588. In my judgment these documents are essentially budgetary planning and forecasting documents. The typed data on page 587 is copied from page 586.
- The four main income streams of Hannen and Collins Ltd were given as F.I.L. (Family Investments Ltd i.e. Hannen money) ORP (Old River Partnership) O & G (Oil and Gas) and Rob Kerr. The total company income was suggested in the first year at $465,000 and low case rising to $645,000 high case in the fourth year.
- The proposed salaries in year one are £45,000 for the claimant and £50,000 for Mr Peter Hannen. Increasing annually by £20,000 the claimant's salary would rise to £105,000 but Mr Peter Hannen's salary only to £60,000 in the fourth year.
- Page 588 deals with the expected income to Mr Peter Hannen and the claimant as sole traders from the sources set out in the schedule. For the claimant they total in year 1 net of contribution to office expenses to £79,000 which added to his salary of £45,000 would give a gross income of £124,000 "excluding trust" which I take to mean excluding private unearned income from trusts.
- It was envisaged that the claimant's sole trader income would fall from £79,000 in year 1, to £54,000 in year 2, to £34,000 in year 3 and to £24,000 at the same time as his salary rises to make up the difference.
- I can only account for the reason for the fall in the claimant's sole trader income as being related to the August Settlement (Credit Suisse No 1. Trust) gradually ceasing to provide an income stream.
- The remaining sources 73A (Old River Partners) Jaffe (connected with the claimant's wife) and ECL Australia Claymore (Merino) add up to £24,000.
- In my judgment in addition to that amount of £24,000 the probabilities are that the claimant would have acquired as a sole trader a further annual amount of upwards of £25,000 gross net of expenses.
- On 7th June 2000 the claimant resigned as a director of six companies including most importantly Hannen and Collins Ltd. (green bundle 3136F-T). It should be noted that that three of the companies had paid no directors fees. The main purpose of the directorships other than that of Hannen and Collins Ltd was to represent Hannen investments in the companies.
- The claimant's employment by Hannen and Collins Ltd was terminated on 22 April 2000 by a written agreement dated 7th June 2000 (green bundle p.3136b)
- The calculation of the claimant's net earned income arising from his profession as an investment consultant is beset with difficulties including the manifold sources of that income and the receipt of money some from investments some from family trusts and some from loans.
- The difficulties are particularly complex for the period from the date of the accident to date. (See white bundle pages 4072A-4072D).
- The problems facing the forensic accountants is set out in their joint report dated the 28th August 2002 (white bundle 4070 – 4072). After that report and up to the trial and indeed during the trial in December 2002 further documents were disclosed by the claimant, which scarcely eased their task or mine.
- Overall I found Mr Dickerson, the claimant's forensic account more impressive than Mr Epstein, the defendant's.
- I start by accepting Mr Dickerson's conclusions that there was no question as to the integrity or consistency of the claimant's tax returns and that there was no evidence of concealed post-accident earnings.
- What would have been the claimant's current regular average annual net income before tax from his profession as an investment analyst and consultant and in the years ahead until he reached his probable retirement age of 65?
- Any assessment inevitably depends upon a number of imponderables. There are periods when investors have confidence and other periods when they lack confidence. There are bull markets and bear markets, booms, recessions and times of stagnation.
- Taking into account the claimant's reputation as an investment analyst and consultant, which I have outlined, and his envisaged salary from Hannen and Collins Ltd and other regular annual sources of income, I assess that but for the accident his annual earned income would have been for the foreseeable future £150.000 net before tax. This excludes the significant chance of sporadic payments, which I have already assessed at £300,000.
Conclusion.
- Future loss of Earnings
(a) 2 years x £150,000 before tax. After tax £94,700. Making allowance for the fact that some of the claimant's income would arise from self-employment but the majority as an employed person.
1.95 (2 years discounted) x £94,700 = £184,665.
(b) 13 years x £100,000 before tax. After tax x £59,500. Making allowances for the fact some of the claimant's income would arise from self-employment but the majority as an employed person.
10.58 (13 years discounted loss not to start for 2 years) x £59,500 = £629,510.
Transport Costs.
- I do not allow a claim for cost of a chauffeur for 3 days a week. However, I am satisfied that because of the claimants continuing residual disabilities including his understandable aversion to driving, he will permanently suffer additional transport costs especially as his wife cannot drive because of her disability. In my judgment the claimant can reasonably incur such additional transport costs by engaging a taxi, mini-cab or hire car as and when required. I shall allow £3,000 a year for additional transport costs for a period of 25 years.
18.65 (25 years discounted) x £3,000 = £55,950.
- I shall allow £7,500 for past additional transport costs recognising that the claimant has been significantly housebound during the past 3½ years and the receipted transport costs will be allowed under the head of Medical Expenses etc.
Net Loss of Earnings from 5th September 1999 for 3½ Years
- I shall use the sum of £150,000. yearly as the multiplicand before tax and national insurance. The multiplicand is intended to cover spasmodic receipts to date.
5th September 1999 to 4th April 2000
anticipated income for ½ year net after deduction for income tax and national insurance after taking a mid-way figure for a married man with both employed and self-employed income.
(See Facts and Figures table on page 203) £47,500.
5th April 2000 to 4th April 2001
(As above table on page 203) £95,000
5th April 2001 to 4th April 2002
(As above table on page 204) £95,100
5th April 2002 to 4th April 2003
(As above table on page 204) £95,200
For simplicity's sake I have brought forward the notional Net loss to the 4th April 2003.
Total Notional Income Lost £332,800.00
- From £332,800.00 has to be deducted the actual net income after tax and national insurance received by the claimant since the accident.
For the Year 1999/2000.
The claimant's tax return for the year 1999/2000 shows an income of £153,332 which would result in a net income after tax and N.I. of approximately £95,100. – Half of which is £47,550. (See white bundle page 4027)
For the year 2000/2001.
£64,393. resulting in net after tax and N.I. of approximately £44,000 to which should be added the tax free receipts of £42,000 making a total of £86,000 (see white bundle pages 4028 and 4034)
For the year 2001/2002.
Net income after tax and N.I. is £15,586 (see white bundle pages 4035).
Therefore £47,550. + £86,000. + £15,586 has to be deducted i.e. £149,136.
I cannot find a record of net income to be deductible for the year 2002/2003. If there is any, the parties can agree the necessary adjustment.
Therefore net loss to date is: £332,800 - £149,136 = £183,664.00
Other Heads of Claim
Care.
- I am satisfied that the claimant's wife has provided a degree of care for the claimant especially in the first two years after the accident but it was of a limited kind. Other than immediately post operatively mainly ensuring that the claimant did not fall over through unsteadiness. In my judgment the global sum of £2,500 is ample compensation under this head. I do not consider that the claimant needs any future care.
- I do not consider that it is established that the costs set out in Miss Fowler's report (white bundle page 4100) are either justified or appropriate.
- In my judgment the claimant's pre-accident assistance in the running of the house and in the garden was minimal or trivial.
Medical Expenses etc.
- In view of my conclusion that cervical surgery was only accelerated I shall allow in full the cost of all medical, psychiatric, cognitive therapy treatment relating to the claimant's psychological state and the actual cost of prescriptions including pain killers, anti-depressant drugs etc and of transport for therapy.
- For the future I shall allow the global sum of £5,000.
- All other heads of claim are disallowed.
- The Parties received copies of the final draft of this judgment with the result that an order has been agreed whereby damages were assessed in the total inclusive sum of £1,407,523.16p and the defendant is to pay the claimant's costs of the action.
