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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> West v Ministry of Defence [2005] EWHC 1646 (QB) (29 July 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/1646.html Cite as: [2005] EWHC 1646 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand. London. WC2A 2LL
		29 July 2005

THE HONOURABLE MR JUSTICE OWEN:

1. INTRODUCTION

The first part of this judgment is to be found at Part IT Chapter 11 of the judgment in the trial of the generic issues. I shall continue to use the abbreviations used in that judgment. The conclusions as to the effectiveness of treatments for combat related PTSD to be found at Part I Chapter 13 of the judgment. in the trial of the generic issues, are of direct relevance to the issues to which this part of the trial has given rise (see in particular 13.43 - 64)

2. In the trial of the generic issues I found that the defendant was in breach of duty in failing to refer the claimant to the MO in the aftermath of the incident on 16 March 1990 when he was on foot patrol in Crossmaglen and his patrol leader, Corporal Hartshorne, was hit on the helmet by a high velocity round fired by an IRA sniper. It is common ground that in consequence the claimant suffered an ASD, and subsequently developed symptoms of PTSD from which he continues to suffer. The issue that now falls to be determined is what, if any, injury, loss and damage is to be attributed to the defendant's breach of duty. The resolution of that issue involves a comparison of the claimant's history since March 1990 and his current prognosis, with the probable course of events and prognosis had such a referral been made.
3. THE CLAIMANT'S HISTORY SINCE 1990

The claimant's first tour of duty in Northern Ireland ended on 16 May 1990, two months after the 'Hartshorne' incident. On his return to Tidworth he began to have nightmares and flashbacks, and became hyper-vigilant (see 11.18 and 11.20). He underwent a second tour of duty in Northern Ireland from 30 November 1990 to 22 December 1990, during the course of which he gave notice of termination of service effective at the end of the three year term for which he had enlisted. His third and final tour of duty in Northern Ireland was from 30 August 1991 to 20 September 1991; and it was on 6 November 1991, four days before his discharge date, that he was arrested by the military police for possession of cannabis. As a result he was retained in service pending his court martial, which did not take place until 10 June 1992, and at which he was sentenced to 6 months detention and to be dismissed from the service.

4. The medical records show that he saw the MO on six occasions between his arrest and his court martial. On 16 March there is a reference to his feeling depressed (see 11.22). About a month after the court martial he saw the MO at Colchester who recorded -

"Feels men starting to make life difficult for him."

5. He was released from detention and dishonourably discharged from the army on 6 October 1992. His Fmed133, the form by which civilian doctors were informed of a patient's service medical history (see Part I Chapter 14.5-6) made no mention of his psychiatric or psychological condition On 7 December 1992 he consulted his GP who recorded "depressed - crying". He saw the GP again on 15 January 1993. The GP's note reads:

"Depressed - crying - swings of mode (sic) gets dreams and nightmares ... bad time in military prison. "

6. The GP referred him to a psychiatrist, Dr Plowman, who saw him on 8 March 1993 and concluded that he " ... appears to be suffering from depression." But in January 1993 Mr Edwards of the Ex-Services Mental Welfare Society, Combat Stress, saw the claimant on a domiciliary visit, and recorded that he had "psychiatric injuries which he decribes as depression, sleep loss, nightmares", which he related to the claimant's experiences in Northern Ireland (seel1.25). It was not until March 1994 that a consultant psychiatrist, Dr D A Jones, to whom the claimant had been referred by his GP, made a diagnosis of PTSD with secondary substance abuse. Dr Jones recorded "substantial psychiatric difficulties with depression, sleep loss and nightmares". He also recorded the claimant as being very concerned at his change of personality from cheerful and outgoing to depressed, on edge and sometimes aggressive, sometimes timid.
7. Since that time the claimant's symptoms have fluctuated in severity. Dr D A Jones saw him again in February 1995 when he was still very distressed and suffering nightmares and flashbacks. He has had two periods of treatment as an in-patient at Ty Gwyn, a period of 8 months in 1996/7 and again between December 2000 and February 2001. The claimant now lives with his partner of four years standing and is in receipt of incapacity benefit, a war pension, and disability living allowance. His war pension was initially awarded for "deviation nasal septum, asthma, ligament strain right knee, mechanical low back strain", but was later increased to take account of PTSD.
8. The current diagnosis by the claimant's expert, Dr Deahl, is of PTSD of moderate severity, with episodic relapses of depressive illness and intermittent harmful alcohol use. He also considers that there has been an enduring change of personality brought about by exposure to trauma in Northern Ireland, which accounts for his paranoid and suspicious perception of others.
9. As can be seen from his report of 17 July 2004, the defendant's expert, Dr O'Brien, agrees that the claimant suffers from symptoms of PTSD, including intrusive nightmares and flashbacks, disturbed sleep, hyper-vigilance when out, irritability and aggressive behaviour, and avoidance of social activity. Dr O'Brian also noted the claimant as describing " ... a sense o fforeshortened future and ... a change in the way he relates to people. "
10. The experts summarise the current position in their joint statement in the following terms:

"8) We agree that he currently reports symptoms diagnostic of PTSD of moderate severity.

9) ...

a) We agree that he has a disorder of personality, with marked paranoid personality traits. Dr Deahl says that this might have been attributable to, or exacerbated by, the incident in Northern Ireland, while Dr 0 'Brian is of the opinion that it is probably constitutional and not caused by the single incident. We agree that there is no evidence upon which to confidently assess pre-morbid personality and therefore it is not possible to resolve this question which must remain a matter of opinion.

b) We agree that Mr West shows harmful use of alcohol. Dr Deahl is of the opinion that this was influenced by events in Ireland and failure to treat if one accepts that his personality deteriorated due to the event and is of the opinion that Mr West probably does sometimes drink in order to ameliorate PTSD symptoms. Dr 0 'Brian sees Mr West's drinking as a feature of his personality and notes that he reports that at times he drinks knowing that it will cause problems and not because of symptoms, although he does not rule out the possibility that at times Mr West has used alcohol to control symptoms.

c) We agree that Mr West appears to have presented repeatedly with relapsing depressive symptoms. The aetiology is unclear that we are not sure whether this is all due to the alcohol and therefore of the same aetiology. "

11. In my judgment there is no difference of substance between the experts. Dr Deahl makes a discrete diagnosis of a change of personality based on paranoid and suspicious perception of others. Dr O'Brien does not do so in terms, but agrees that he has marked paranoid personality traits. Their views diverge to some extent as to alcohol abuse. Dr O'Brian sees his drinking as a feature of his personality, whereas Dr Deahl considers that" ... this (the harmful use of alcohol) was influenced by events in Ireland". But the highest that Dr Deahl puts it is that the claimant " ... probably does sometimes drink in order to ameliorate PTSD symptoms", and Dr O'Brian cannot rule out the possibility that at times the claimant has used alcohol to control symptoms. I am satisfied that the claimant does on occasions drink to excess to ameliorate his symptoms.
12. The claimant left school without any qualifications. Before joining the army he worked in a fish and chip shop, and at a factory and as a gardener on a YTS scheme. Since his discharge he has not worked, save for two short periods of seasonal work in 1993/4 .. He was deemed incapable of all work for the purposes of his entitlement to incapacity benefit when assessed in June 1994 and again in April 1998.
13. Without treatment it is unlikely that the claimant will ever find gainful employment. As Dr Deahl says in his report of 9 July 2004 -

"It is the above symptoms (. .. PTSD currently of moderate severity in addition to a relapsing depressive illness ... the hyper-arousal symptom cluster of PTSD; in this case irritability and emotional liability) that also render Mr West unfit for work as it is probable that relationships in the work-place would break down because of these symptoms and as a result of his sensitive, suspicious nature. "

14. THE CURRENT PROGNOSIS

The claimant's prognosis depends upon whether or not he undergoes a further course of treatment. Dr Deahl considers that he should be treated with a prolonged course of SSRI's and concurrent CBT, together with treatment in anger management. Similarly Dr O'Brien recommends treatment with SSRI's in response to complaints of depressive symptoms and treatment in anger management. They agree that without treatment the prospect of employment is poor, that the claimant's social interaction and behaviour cannot be expected to change, and that his symptoms are likely to wax and wane in intensity, but not resolve. They further agree that if he undergoes treatment with SSRI's and/or CBT, on the balance of probability he should be able to seek alternative employment, initially on a part-time basis, within about a further twelve months. They would expect social interaction and behaviour to improve to some extent over the same period and agree that his symptoms would probably be markedly reduced. As to his prospects of employment Dr Deahl considers that the range of occupations open to him will be limited by his "sensitive - rather paranoid personality". He considers that he would be limited to unskilled or semi-skilled work either in a self-employed capacity, or if employed in a relatively solitary occupation. Given that he is only likely to make a partial symptomatic recovery, that is a conclusion that I accept.

15. The claimant has on past occasions rejected offers of treatment. But as Dr Deahl says in his report of 3 July 2004 that is " ... entirely understandable considering the chronicity and severity of his symptoms and understandable suspicion of authority. " In the course of his evidence the claimant said that if any type of therapy would help, he would be willing to undergo it. I accept that evidence, and therefore approach the quantification of the claim on the premise that, with this litigation behind him, the claimant will be prepared to undergo treatment.
16. THE PROBABLE COURSE OF EVENTS HAD THE CLAIMANT BEEN REFERRED TO THE MEDICAL OFFICER IN MARCH 1990

The probable course of events can conveniently be considered by addressing the following questions:

i) What would have happened to the claimant if referred to the MO in March 1990?

ii) Would referral to the MO have prevented the development of PTSD?

iii) If not, would the claimant have engaged in treatment for PTSD?

iv) What would the likely outcome of such treatment have been?

v) When would the claimant have left the Army?

vi) Would the claimant have avoided:

a) Using cannabis

b) His conviction for possession of cannabis

c) His sentence for possession of cannabis

vii) To what degree, if any, would his long term condition and prognosis have been different?

17. His conviction and sentence for possession of cannabis gives rise to two further issues, one factual, the other legal. The factual issue is whether, and if so to what degree, his psychiatric condition and prognosis have been adversely affected by his conviction and sentence. The legal issue is the effect in law of the conviction and sentence upon the claim for damages, an issue that will involve consideration of the application of the decision of the Court of Appeal in Clunis v Camden and Islington Health Authority [1998] QB 978, and related authorities.
18. WHAT WOULD HAVE HAPPENED TO THE CLAIMANT IF REFERRED TO THE MO IN MARCH 1990?

The claimant's MO at the material time was Lt. Colonel Bennett. His evidence was agreed. If the claimant had been referred to him by his company commander, he would have arranged to see him as soon as possible, and on the basis of the claimant's description of his symptoms in his witness statement of 29 September 2001, would have referred him to the psychiatric team at Musgrave Park hospital for assessment.

19. The experts agree that at Musgrave Park hospital the claimant would have been seen by a consultant psychiatrist, either Dr Piper or Dr McKinnon, and would have been "offered debriefing, follow-up and review of his condition". Dr Deahl considers that the claimant would have engaged in treatment at Musgrave Park hospital. Dr O'Brien expressed the view in his report of 17 July 2004 that "the chances of his not engaging were relatively high, but probably not in excess of 50%." He accepted in cross-examination that that meant that he would probably have engaged in treatment. I am satisfied that he would have done.
20. The experts then agree that in the event of his engaging in treatment but failing to improve with de-briefing and support, the claimant would have been prescribed an anti-depressant, probably a SSRI, and would have been referred to the PTSD treatment unit at QEMH Woolwich, where he would have been treated with SSRI's and CBT.
21. WOULD THE REFERRAL TO THE MO HAVE PREVENTED THE DEVELOPMENT OF PTSD?

The experts agree that on the balance of probability the claimant would have developed PTSD even if he had engaged in treatment.

22. WHAT WOULD THE LIKELY OUTCOME OF TREATMENT HAVE BEEN?

The findings as to the outcome of treatment in the trial of the generic issues provide the framework within which to address this issue. For present purposes the following conclusions are relevant -

1. There was a clear consensus amongst experts, based on clinical experience, that the earlier the intervention, the more beneficial the outcome is likely to be. (13.43)

2. Whatever the treatment, treatment gains are at best modest. (13.44)

3. CBT was likely to have been an effective treatment for combat related PTSD. (13.58)

4. Treatment of combat related PTSD with SSRIs is likely to have been effective. (13.64)

5. The degree to which any individual would have benefited from treatment will necessarily depend upon the nature, severity and chronicity of the condition. (13.65)

23. Secondly there was a consensus between the experts, supported by the evidence given in the trial of the generic issues, that in very broad terms treatment of combat related PTSD by the methods known to be effective, would result in a substantial 'cure' in approximately one third of such cases, symptomatic relief with improved occupational functioning for those within the next third, and that the final third would not derive benefit from such therapies.
24. But the views of the experts diverge as to the group in which the claimant should be placed for the purposes of predicting the outcome of treatment at QEMH in 1990. The difference between them is succinctly summarised in the following passage from their joint statement -

"Dr Deahl is of the opinion that with treatment he would have been less disabled by his symptoms that was actually the case. Dr O'Brian is of the opinion that the outcome would have probably been essentially unchanged. "

25. In the course of his evidence Dr Deahl placed the claimant at the mid-point of the mid group. He considers that with the appropriate treatment at that stage the claimant " ... would have continued to suffer symptoms of PTSD, but less severe and less disabling in terms of relationships." He considers that the claimant would have been able to control his symptoms rather than being dominated by them, and would have been able to function well in the medium to long term. He also considers that given that the claimant would only have made a partial recovery, the probability is that he would have been medically discharged.
26. Dr O'Brian considers that the prognosis for the claimant was always poor, i.e. that he fell into the bottom third, and that on the balance of probabilities the failure to intervene in 1990 has not materially affected the progress of the condition or the prognosis. He identified a number of factors which in his view were predictive of poor outcome, a pre-existing vulnerability to psychiatric disorder demonstrated by a prescription for diazepam in 1986 and a consultation in 1987 when he was noted to be "nervous ", his poor performance as a soldier, his use of cannabis and his poor educational attainment. But there is an inherent illogicality in the position taken by Dr O'Brian. He now agrees with Dr Deahl that with treatment, the claimant's condition will improve to the extent that he will, on the balance of probabilities be able to seek employment, albeit initially on a part-time basis, within about a further twelve months, that his social interaction and behaviour would improve to some extent over the same period and that his symptoms would probably be markedly reduced (see the experts' joint statement of April 2005). Agreement to the proposition that the claimant will improve if now treated, but to argue that treatment in 1990 would not have made a material difference to the claimant's condition, calls for explanation. No satisfactory explanation of that apparent illogicality was advanced. Furthermore there was a consensus between the experts at the trial of the generic issues that the earlier the intervention, the more beneficial the outcome is likely to be. I therefore prefer the evidence of Dr Deahl on this issue, and am satisfied that treatment at QEMH by SSRIs and/or CBT would have led to partial recovery in the sense of an alleviation of symptoms.
27. I also accept Dr Deahl's evidence that the probability is that following treatment, the claimant would have been medically discharged, and by implication that the alleviation of symptoms would not have sufficient for him to be able satisfactorily to discharge his duties as a serving soldier.
28. Had there been a medical discharge then the claimant would have avoided the further tours to Northern Ireland. There would have been an ordered transfer to civilian medical care, either to specialist psychiatric services or to a general practitioner, depending upon the claimant's condition at the material time.
29. WHEN WOULD THE CLAIMANT HAVE LEFT THE ARMY?

The duration of the appropriate treatment would have depended upon his response, but Dr O'Brian, who had worked in the PTSD unit at QEMH, agreed in cross-examination that treatment could have taken up to a year. It is therefore reasonable to assume that the claimant would have been medically discharged by mid-1991.

30. I should add that I am satisfied that in any event the claimant would have left the service after three years. He said in evidence that he had joined up for three years with the option of staying in for a further three years, and that he would have made his final decision as he approached the three year point. But he gave notice of termination at the three year point on 7 December 1990; and on 18 March 1991 his company commander, Major Thornton, recorded:

"West is honest that he joined the army for 3 years only - and now his time is up he wishes to terminate. "

I find that note to be compelling evidence of the claimant's intentions.

31. WOULD THE CLAIMANT HAVE AVOIDED USING CANNABIS. HIS CONVICTION FOR POSSESSSION OF CANNABIS. HIS SENTENCE FOR POSSESSION OF CANNABIS?

There is an issue between the parties as to the claimant's use of cannabis. He says that he had used it on one occasion during his training by way of experimentation but did not use it again until after his third tour of duty in Northern Ireland. He says that he then used it ..... "to calm me down - help me sleep at night" on a number of occasions during the five or six weeks preceding his arrest on 6 November 1991. The defendant challenges that evidence as improbable and seeks to rely upon the differing accounts as to cannabis use appearing in the records.

32. I have carefully considered the records and the defendant's contention that the claimant's current account is at odds with what he told Dr D. Alun Jones in 1994, Dr O'Brien in 1999 and 2001, Dr Jeff Jones in 2003, and with the account given to the Special Investigation Branch in the second interview after his arrest. But such accounts were consistent with his evidence that he used cannabis on one occasion during his basic training, and not again until after the third tour of duty. Whilst it appears that he sought to understate his use since the third tour of duty, for example telling Dr O'Brien in 1999 that he had stopped using it when he joined his battalion but started again only about a week before he was arrested, I am satisfied that the account given in evidence is reliable, both in terms of the number of occasions on which he used it, and more importantly that it was used for symptomatic relief.
33. In those circumstances I am satisfied that on the balance of probabilities the claimant would not have used cannabis in October/November 1991 had he been referred to the MO after the 'Hartshorne' incident. It follows that his arrest, conviction, and sentence would have been avoided.
34. I turn then to consider the two further issues to which the conviction and sentence give rise, namely the factual issue of whether, and if so to what degree they have adversely affected the claimant's psychiatric condition and prognosis, and secondly the effect in law of his conviction and sentence on his claim for damages, the Clunis Issue.
35. In the course of his interviews by the military police following his arrest, the claimant informed them that he had been supplied cannabis by a friend, Private Gwynette. The claimant gave evidence to the effect that in consequence he was subjected to threats and intimidation. In 2001 he told Dr O'Brien that he was threatened with death every night, that his fellow inmates would debate in his hearing whether to kill him that night or not. In the course of his oral evidence the claimant said that he was constantly jeered at and hissed at. He added "1 didn't think that 1 was going to make it out of Colchester." The medical records provide some contemporary support for the evidence given by the claimant as to the degree to which he was subjected to bullying whilst in detention (see paragraphs 4 and 6 above). I accept his account.
36. The claimant agreed with the experts who said in their joint statement-

"We agree that arrest, trial and imprisonment made Mr West's state significantly worse and perpetuated his problems. We agree that it led to him being more mistrusting of authority and to those in positions of authority in the long-term. "

As Dr Deahl said in his report of9 July 2004-

"There can be no doubt that imprisonment was a powerful factor contributing to a further deterioration in Mr West's depressive symptoms, undermining his sense of self-worth and esteem, and adversely affecting his long-term prognosis. "

37. In cross examination he said that but for the arrest, trial and imprisonment, the claimant would have been" ... rather less depressed, more biddable, more likely to engage in treatment. "
38. It is therefore clear that the conviction and sentence, and the treatment meted out to the claimant in detention made his condition significantly worse, both in the short and long term.
39. CLUNIS

In Clunis the claimant, who had a history of mental disorder, was discharged from hospital, having been detained under section 3 of the Mental Health Act 1983. He was subject to after care by the defendant health authority, but failed to attend appointments. Three months after his discharge he killed a man in a sudden and unprovoked attack. He pleaded guilty to manslaughter on the grounds of diminished responsibility, and was ordered to be detained in a secure hospital. He then brought an action against the defendant health authority on the basis that it was in breach of its common law duty of care to treat him with reasonable professional skill and care, that had he been given treatment, he would not have committed manslaughter, and would not have been subjected to the prolonged detention that he now faced. The Judge refused to strike out the claim, holding that the claimant was not precluded from recovering damages consequent upon his own criminal act, but his decision was reversed on appeal, the Court of Appeal holding that:

" ... the rule of public policy that a plaintiff should not be able to rely on his own criminal or immoral act was not confined to particular causes of action; that public policy only required a court to deny its aid to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and sought to rely on the illegal act in putting forward his case ... "

40. The judgment of the court was given by Beldam LJ. At page 987 C he held that:

" ... whether a claim is founded in contract or tort, public policy only requires the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts. "

41. The claimant reserves the right to argue that Clunis was wrongly decided. But it is conceded on his behalf that on the authority of Clunis he is precluded from recovering damages arising from the fact of his conviction for possession of cannabis and his resulting imprisonment.
42. Mr Irwin QC submits that the 'Clunis' principle is limited to the direct consequences of the criminal act, the conviction and imprisonment. He accepts that the fact of the arrest, conviction and detention and any adverse effect upon his psychiatric condition attributable to them, cannot sound in damages. He also accepts that the claimant cannot recover damages to reflect the degree to which his prospects of employment have been adversely affected by his conviction and dishonourable discharge. But he submits that the treatment meted out to the claimant whilst in detention by his fellow inmates can sound in damages, as it was only an indirect consequence of his criminal act, but a direct consequence of an act for which he cannot be criticised, namely revealing the source of supply of the drugs in question.
43. It is submitted on behalf of the defendant that it would be wrong in principle to seek to disentangle the effects of acting as an informant from the effects of committing an illegal act, that they are part and parcel of the illegality that the Court cannot, as a matter of public policy, condone by awarding damages. Secondly it is submitted that in any event it is not possible to disentangle the effects of the treatment that the claimant underwent at the hands of his fellow prisoners, from the effects of conviction and imprisonment.
44. Mr Irwin developed his argument by submitting that the threats and intimidation arose from the claimant's co-operation with the authorities in naming Private Gwynette; and whilst it may be sound public policy that a claimant may not recover damages for the consequences of his own criminality, it cannot be sound public policy to preclude redress for damage sustained as a result of bringing others to justice. Secondly he argued that the position is in essence indistinguishable from the situation in which a prisoner is assaulted by another prisoner or prison officer, or is the subject of negligent medical care by prison medical authorities. In such circumstances the injuries sustained are a consequence, albeit indirect, of the criminal act that resulted in the sentence of imprisonment; but a claimant would not be precluded from advancing a claim for damages.
45. Mr Irwin further sought to derive support for the distinction that he sought to draw between the direct and indirect consequences of an illegal act from two decisions of the Court of Appeal post-dating the decision in Clunis. In Worrall v British Railways Board QBENI 1998/0885/1, the plaintiff claimed damages for injuries sustained in 1984 in the course of his work in 1994. But in June 1987 he was convicted of two offences of buggery committed against working prostitutes and sentenced to a total of 6 years imprisonment. He claimed that the commission of the criminal offences and his resulting imprisonment were the consequence of the injuries that he had allegedly sustained in the accident. His pleaded case was struck out in so far as it was based upon the consequences of his conviction and sentence. The plaintiff appealed against the strikeout. The Court of Appeal held that the case was indistinguishable from Clunis save in immaterial respects, and dismissed the appeal. Mr Irwin sought to rely upon the following passage from the judgment of Mummery LJ:

"The plaintiff's claim is for negligence. The essence of the tort of negligence is that the plaintiff has suffered harm as a result of a breach of duty of care owed to him by the defendant. It is true that the plaintiff has suffered harm and that the defendant has admitted negligence. But the particular head of damage which the plaintiff has pleaded in the struck out parts of the pleading relates to loss suffered by him as a direct (my emphasis) result of crimes committed by him against others, not as a direct or foreseeable result of a breach of a duty of care owed to him by the defendant. "

46. Secondly he relied upon passages from the judgments in Hewison v Meridian Shipping Services PTE Ltd. & Others [2002] EWCA Civ 1821, / [2003] ICR 766. It is not necessary for present purposes to summarise the facts. In following Clunis. Clarke LJ said:

"28 .... it is common ground that there are cases in which public policy will prevent a claimant from recovering the whole of the damages which, but for the rule of public policy, he would otherwise have recovered. The principle can perhaps be stated as a variation of the maxim so that it reads ex turpi causa non oritur damnum, where the damnum is the loss which would have been recovered but for the relevant illegal or immoral act. A classic example is the principle that a person who makes his living from burglary cannot have damages assessed on the basis of what he would have earned from burglary but for the defendant's negligence.

29. To my mind the authorities support that approach. They seem to me to support the proposition that where a claimant has to rely upon his or her own unlawful act in order to establish the whole or part of his or her claim the claim will fall either wholly or in part. 77 8G-H.

43 .... In my judgment an English court should not deprive a claimant of part of the damages to which he would otherwise be entitled because of the defendant's negligence or breach of duty by reason only of some collateral or unlawful act. "

47. Similarly at paragraph 51 Tuckey LJ said:

"Illegality may affect a tort claim in many ways ranging from an essential part of the story giving rise to liability to some remote aspect of quantum. For this reason I favour a broad test of the kind proposed by Clarke LJ viz: is the claim or the relevant part of it based substantially (not therefore collaterally or insignificantly) on an unlawful act?"

48. In his dissenting judgment Ward LJ cited the judgment of Judge LJ in Cross v Kirby (unreported) in which he held at paragraph 103:

"In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his course of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense. "

49. Ward LJ also cited the following passages from the judgment of Mance LJ in Hall v Woolston Hall Leisure Ltd. [2001] ICR 99 at page 123, para. 79:

"While the underlying test therefore remains one of public policy, the test evolved in this court for its application in a tortious context thus requires an inextricable link between the facts giving rise to the claim and the illegality, before any question arises of the court refusing relief on the grounds of illegality. In practice, as is evident, it requires quite extreme circumstances before the test will exclude a tort claim. "

50. In my judgment Mr Irwin's submission is well founded. The principle articulated in Clunis precludes recovery where the claimant has to rely upon his own unlawful act to establish his claim. He may not recover where the injury for which he seeks compensation is the direct consequence of his own criminal act, or, to adopt the phraseology of Judge and Mance LJJs, where there is an inextricable link between the facts giving rise to the claim and the illegality. But in the instant case there is in my judgment a valid distinction in law to be drawn between the consequences of conviction and imprisonment, and the consequences of the behaviour to which the claimant was subjected at the hands of his fellow prisoners. Such conduct was the direct result of the lawful act of the claimant in providing information to the police implicating another in criminal conduct. It was not the direct consequence of the claimant's illegal act.
51. But although the distinction is valid in principle, I have come to the conclusion that the submission made on behalf of the defendant that it is simply not possible to disentangle the consequences of one from the other is equally valid. The claimant's expert, Dr Deahl, agreed in cross-examination that the exercise was akin to counting the number of angels that could prance on a pinhead.
52. I have therefore come to the conclusion that the claimant has not satisfied the evidential burden of demonstrating that there was a quantifiable degree of injury attributable to the threats and intimidation to which the claimant was subjected, as opposed to the effect of his arrest days before his discharge, and his subsequent conviction and sentence.
53. I turn then to consider the quantification of the claim.

GENERAL DAMAGES

It is submitted on behalf of the claimant that his condition is similar to the 'severe' category of PTSD in the JSB Guidelines for the Assessment of General Damages, 7^th Ed. for which the suggested bracket is £34,000 - £55,000. I accept that if the claimant was to be entitled to compensation for his condition in its entirety, then the appropriate award for general damages would be in the upper half of the bracket given by the JSB. But his claim is limited to compensation for the loss of the benefit of treatment in 1990. It is common ground that the claimant would have developed PTSD even if treated at that stage. He therefore stands to be compensated for the degree to which his symptoms would have been ameliorated. But secondly, and by application of the Clunis principle, he cannot recover damages for the degree to which his condition was exacerbated by his conviction and imprisonment. Thirdly it is necessary to take account of the fact that with treatment there will be a substantial improvement in his condition. Bearing those factors in mind, I have come to the conclusion that the appropriate figure for general damages is £20,000.

54. PAST LOSSES

MISCELLANEOUS EXPENSES

I am satisfied that the claimant has incurred expenses averaging £ 100 per annum; but some part of that expenditure would have been incurred in any event. I consider that it is reasonable to allow him 50% of the sum claimed.

55. CARE AND ASSISTANCE

The claimant asserts in his Schedule of Loss and Damage that he has required intermittent assistance and support from his partners, family and friends particularly in times of depressive mood or drunkenness. He claims a total of £2500. But I do not find any evidential support for the claim.

56. PAST LOSS OF EARNINGS

The claim is advanced on the basis that the claimant had an average earnings potential of" ... just in excess of £16,000 per annum gross and £12,000 net ... ". His advisors arrive at that figure by reference to the range of jobs that is submitted the claimant would have been able successfully to undertake, and to the Office of National Statistics New Earnings Survey 2003. But bearing in mind that the treatment that the claimant would probably have undergone would only have been partially successful, such an annual loss is in my judgment unrealistic. I consider that the range of work open to him would have been more limited and more modest. In this context the defendant sought to rely upon the argument that the range of work available to the claimant would also have been limited by the physical disabilities for which his war pension was granted, a right knee injury and a mechanical low back strain. But no evidence was adduced as to the nature or extent of such injuries, and I propose to disregard them. In my judgment it is appropriate to assume an earning potential, had he been referred for treatment in 1990, of £10,000 per annum.

The question then arises as to whether this head of loss is affected by the Clunis principle. That is not an issue that was specifically addressed in closing submission, but is an issue upon which I invite further submissions from counsel.

57. FUTURE LOSSES

FUTURE TREATMENT

The experts are agreed as to the cost of the appropriate treatment, mainly a total of £2,500.

58. FUTURE LOSS OF EARNINGS

The claimant was born on 18 May 1968, and is therefore now 37 years of age. As I have already indicated the experts agree that with treatment he will be able to seek employment, initially on a part-time basis, within a period of about 12 months. I accept Dr Deahl's opinion that he will be limited to work in a self-employed capacity, or to employment in a relatively solitary occupation. It is reasonable to assume that in due course he will have an earning capacity of the order of £10,000 per annum, but that it will take three years before he is likely to achieve that level of earnings. In the meantime there will be a year in which he is unlikely to earn, followed by two years of part-time earnings for which it is reasonable to assume that he will earn 50% of his ultimate earning capacity.

Accordingly I assess his future loss of earnings for the next three years at £20,000.

59. The fma1 question is whether there the claimant has established a continuing loss of earnings after the three year period. I am satisfied that the range of work available to him will continue to be limited. Bearing in mind my finding in the trial of the generic issues that the earlier the intervention, the more beneficial the outcome is likely to be, I am also satisfied that after the treatment that is now envisaged, his residual condition will not be as good as it would have been had he been referred for treatment in 1990. Secondly he is and will continue to be at a disadvantage in the labour market by virtue of the fact that he has been out of it for so long. I do not consider that the claimant has established a continuing loss of earnings that can be calculated by the conventional method of multiplier and multiplicand, but I am satisfied that there will be a residual disadvantage in the labour market properly to be attributed to the breach of duty on the part of the defendant. Bearing in mind the claimant's age, I have come to the conclusion that the appropriate award under the Smith v Manchester head is £40,000.