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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 >> Murphy v Ministry of Defence [2016] EWHC 3 (QB) (11 January 2016) URL: http://www.bailii.org/ew/cases/EWHC/QB/2016/3.html Cite as: [2016] EWHC 3 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th January 2016

HHJudge Coe QC :

1. The Claimant claims damages for personal injury arising from an accident which occurred towards the end of October 2010. He was a serving soldier, a Sapper in the 9 Parachute Squadron RE 23rd Engineer Regiment (Air Assault). He joined the Army on 24th April 2006. He was born on 10^th March 1989 and was 21 years old at the time of the accident. He was posted at Patrol Base Nahidullah in Afghanistan at the time where he was serving with his unit as part of Operation Herrick 13. His trade was electrician. He had become a paratrooper (part of an elite section in the Royal Engineers) in the summer of 2008. At the time of the accident he had done 9 parachute jumps in total of which five were in his initial training.
2. Whilst in the course of unloading goods vehicles at Patrol Base Nahidullah with colleagues he was involved in moving large heavy rolls of fabric used to create temporary roads. During the course of this he was struck on the head by one of the rolls of fabric thrown by two of his colleagues from one of the vehicles. He suffered injury. Proceedings were issued on 2nd October 2013 and the Defence was entered on 24th March 2014. The Defendant admitted breach of its duty of care in correspondence dated 22^nd September 2014 and judgment for the Claimant was entered on 27th October 2014 with damages and interest to be assessed (TB 1/56). This trial has concerned causation and quantum only, therefore.
3. The Claimant was initially evacuated to Camp Bastion by helicopter. He was then returned to the UK. He was formally medically discharged from the Army on 19^th September 2013, having left on 7^th June 2013 at the age of 24. It is the Claimant's case that in consequence of this accident he has developed chronic widespread pain ("CWP") also known as fibromyalgia. This condition is long-term and may be permanent. He has ongoing symptoms and some ongoing restrictions on activities.
4. The Claimant claims damages for pain, suffering loss of amenity, loss of congenial employment, past loss of earnings, past treatment and past care. He also claims for future treatment and future loss of earnings. There is a pleaded pension loss. As I was urged to do, I have adopted the course taken by Dingemans J in Finney v South Devon Healthcare NHS Foundation Trust [2014] EWHC 433 (QB) and "put over" the question of the pension loss. This is because the Claimant has found more settled employment and depending on my findings on the issues here the loss will be between nil and a maximum of approximately £16,000, that is, significantly less than is pleaded.
5. The Claimant's total pleaded claim amounts to somewhere in the region of £300,000.
6. The Defendant's position is that the Claimant suffered minor injuries only and made a recovery in a period of a little more than three months. The Defendant denies that the accident and its consequences caused or triggered the CWP. It is not disputed that the Claimant has developed CWP or that his ongoing symptoms are genuine. The Defendant says however that it is not responsible for that condition.
7. I heard evidence over 3 days and submissions on a fourth. There are five lever arch files of documents and one of authorities. I heard oral evidence from the Claimant, his wife, his mother and father. The evidence of Mr Cairns, a former colleague of the Claimant who is currently working overseas was put in pursuant to a hearsay notice.
8. Of course, the written statements formed the evidence of the witnesses in chief and the experts confirmed their (lengthy) reports before answering limited questions in relation to specific matters. The orthopaedic and dental experts did not give oral evidence. In the circumstances it has been necessary for me to set out in this judgment (which is also lengthy) the detail of much of the evidence which was not in fact rehearsed during the trial.
9. In his statement (TB 1/74) the Claimant sets out that he is from a military family. He lived on military bases where his parents were stationed. His parents and uncle were in the Army. His grandfathers were in the Navy and the RAF. The Claimant wished to follow this family tradition. Having left school after his GCSEs, the Claimant attempted to join the Army, but in light of his history of symptoms of irritable bowel syndrome ("IBS") he could not join immediately. He began a plastering apprenticeship, but did not complete it, choosing instead to join the Army as soon as he was able to on 24th April 2006, six weeks after his 17th birthday. Having been selected and trained as a paratrooper in the summer of 2008 and having served on guard duties at royal palaces, the Claimant flew out to Afghanistan with the rest of his regiment on 4th September 2010 on Operation Herrick 13.
10. It was while on the posting at Patrol Base Nahidullah that he suffered the injury. The rolls of fabric are very heavy apparently weighing 50 to 60 kg. The Claimant gives an account of being hit by the roll on the back of his head and knocked unconscious. He does not know how long he was unconscious for, but when he came round his neck and back hurt. He had lost half of one back tooth, fractured four other teeth and his vision was blurred. That is his account of his physical injuries. He says he was originally treated at the patrol base and after two days he was moved to Camp Bastion where he received physiotherapy. He was told that he had a slipped disc and a whiplash injury in his back. He received physiotherapy and was put on menial tasks. He was taking a great deal of medication. He does not believe that his records accurately reflect the amount of medication he was taking. He remembers finding it very difficult to stay awake. Being keen to return to active duty he was encouraged to do exercises and did so, but found that he could only do them when he was taking a large quantity of painkilling medication. There was no MRI scanner at Camp Bastion. An MRI scan was requested there and so the Claimant came back to the UK in December 2010 in a casualty evacuation plane.
11. He reported to the medical unit at his camp at Rock Barracks, Woodbridge. He says that his blurred vision continued for about three months after the accident. He said that he also suffered with a loss of bladder control and humming in both ears. He describes being "pushed" into a stores role. He felt ostracised. He had no complete diagnosis and was not having any rehabilitation. He describes being exhausted and was unable to get a decent night's sleep. He began mixing his medication with alcohol. He became aggressive as a side-effect. He considered that he was treated badly by his regiment and having returned home was left to suffer in barracks with no treatment until June 2011. It was only then that he had an MRI scan. He felt that he had to chase for this.
12. During this period of time he describes being in a great deal of physical and emotional pain and his marriage was under a lot of stress. It is his account that having had the MRI scan he was informed that he had a very serious back injury including whiplash to thoracic vertebrae 1-10, a "bulged" disc between T6 and T7, a slipped disc and degeneration in two discs in the lower region of his back.
13. He had difficulty walking, but was able to ride a bicycle. Unfortunately he was knocked off his bicycle in September 2011. This caused a temporary worsening of his symptoms although no additional permanent injury.
14. In October 2011 he had facet joint injections which he considered produced a definite improvement in symptoms although he still had some restriction in his mobility. The pain was reduced however. This improvement had a huge impact on him physically and psychologically. He was referred to the regional rehabilitation unit (RRU). He describes that he took advantage of this and in order to demonstrate that he was physically fit he was trying to push through the pain barrier to do physical training including playing squash. He continued to suffer pain despite the injections, but returned to physical training with the use of painkillers and alcohol. He tried to move to a different unit because of his dissatisfaction with his medical treatment in his own unit.
15. He was upgraded to medically fully deployable (P2) in February 2012, but then immediately taken off parachute duties due to the risks associated with parachuting with a back injury. He continued in an administrative/stores role being unable to carry out his duties as a combat engineer or electrician.
16. In the summer of 2012 he was deployed at short notice to provide security at the Olympic Games in London. He said that he was able to do this, but found he began to struggle with his back pain and as the effect of the injections wore off. He put on a lot of weight and was drinking heavily to deal with the pain. He was medically downgraded again in October 2012. He had his second and final steroid injections in March 2013 which again produced an improvement. He was formally discharged on 19th September 2013 at the lowest tier of medical discharge having been permanently downgraded.
17. He describes how these events had a profound effect on his mental well-being. He was referred to a mental health practitioner in the Army. He had suicidal ideation. There were two occasions when he attempted to hang himself. He felt low and isolated.
18. In his statement he sets out that he suffered a loss of parachute pay, a loss of unpleasant living allowance and longer separation allowance which he would have received on his account up until 17th March 2010. At paragraph 41 of his statement he said that since January 2012 he had to have sports massage at least once a month in order to relieve some of the pain in his back and that cost about £35 per session with his Army discount.
19. He describes how his wife had to undertake a lot of daily tasks for him and provide him with care including helping him in and out of the bath. At the time of the accident he was physically extremely fit and training twice a day by reason of his status in an elite parachute squadron. He also enjoyed playing football and rugby to a good standard. He played squash socially. He enjoyed hill-walking, running, cycling and orienteering. He can no longer do these activities. He is embarrassed by his occasional incontinence. He worries about being caused pain if he bumps into someone. He has pain if he drives for long distances or if the road is bumpy and this curtailed his socialising as well. He often had to lie on the floor to recover from a full day's work. He is particularly upset about not being able to play with his two children as he would like to.
20. He describes suffering from a lack of strength and from pain. He manages the pain by reducing activity. He has had ongoing dental treatment by reason of the damage to his teeth. He considers he has reached a plateau. He cannot walk more than a couple of hundred metres without feeling pain. He has pain in his upper and lower back and the pain spreads to his hips. His activities are restricted.
21. He sets out in his statement that it had always been his intention to serve a full career in the Army and the loss of his military career has been devastating for him. He is very distressed by it. He considered that he was doing well in the Army and had positive reports and appraisals. He considers that on return from the tour in Afghanistan he would have undertaken officer training and progressed through the ranks. However, his injuries stopped this progress and ultimately ended his career. Having left the Army he was unsure what to do, but began to work as a senior team leader for Keir in June 2013. However, he struggled with the job which was too hectic and "manic" and required long days with a long commute. He began a new job on 12^th November 2013 as a facilities supervisor at the Institute of Contemporary Music Performance in Kilburn. However, that was also very demanding and the stress of long working days again caused worsening of symptoms. He therefore left this employment and is now an estate workforce manager in the NHS. He is responsible for managing all of the maintenance staff in his NHS trust. It is a regular 9-to-5 job which is less demanding. He earns approximately £45,000 per annum gross.
22. I have seen some video surveillance evidence of the Claimant taken primarily on his commute to and from work. It is mostly taken from behind. The Claimant appears to walk reasonably normally at a reasonable pace and without undue guardedness. He is seen travelling on the Underground.
23. When the Claimant gave his evidence orally he showed signs of distress at times particularly talking about playing with his children. Otherwise he was of somewhat flat affect. He gave his evidence carefully, almost meticulously, and in the clipped and formal manner of a trained soldier.
24. He told me that he had experienced knee pain during training for his "para" selection course whilst doing intense physical training including long distance, loaded runs. He spent some time with the physiotherapists who helped him release his tightened muscles and he could then run without pain.
25. He told me that he and his family moved away from the barracks in June 2013. He had massages all the time up until then, but has not been able to find anybody that good since. He has learned how to manage his pain making a conscious effort so that if it starts he knows what to do. His symptoms have improved so that he does not have to lie on the floor to relieve them. Whereas previously when he could feel the pain increasing and building up he would fight through it, he does not do that now. He has learnt to live with his limitations and to take steps to rest and so on. He made it clear that whatever the experts say he mows the lawn himself and believes that he should be able to and can do that and DIY jobs himself. Nonetheless knowing his limitations is frustrating for him. His home life can be quite difficult. His children are aged three and five now. He cannot let them ride on him as if he were a horse or kick a ball or carry them on his shoulders.
26. He told me that he has had a 1% increase in his salary and that he finds that the NHS are a more accepting and accommodating employer and the work is slower-paced so he can manage at his current levels. He has always had very secure employment with the NHS. There is a possibility of change in the Department although nothing concrete has been decided. There is a possibility that there would be a complete TUPE of the service which would be taken over by a private company. He assumes that as the manager he would go with them.
27. He was cross-examined and he said that after the accident he wanted to return to his job and his colleagues on the ground. He agreed that he would have wanted to recover and return. He does not feel able to say exactly what he was thinking five years ago. He expressed the view that his only interest was in being returned his unit because that was where he belonged. He described how in an effort to get back he was pushing through the pain barrier and using a lot of medication.
28. The Claimant's wife, Mrs Lee-Ann Murphy provided a statement (TB1/86). She left school at 16 and went to work as a mess hand at Wainscott barracks. She has always lived in Medway and is originally from Chatham. She and the Claimant met in 2007 and married on 21st December 2009. She was aware from the beginning just how keen the Claimant was on his job in the Army and that Army matters were the main topic of conversation for the Claimant and his family. The couple moved into Army quarters in Woodbridge in January 2010. Their first child, Ryan, was born on 4^th August 2010 and their second child, Amy, was born on 7th December 2011.
29. Mrs Murphy was keen to have a permanent residence at some point and even though she knew that her husband would be moving around a lot she wanted a permanent base and she wanted her children to grow up where she had done. She "won" this argument and the family live in Kent.
30. When the Claimant came back from Afghanistan after the injury she recalls that he was clearly depressed about returning early and was in a lot of pain and was unable to do very much. He could not even pick up Ryan. He was stressed and distressed all the time, putting a great strain on their marriage. He could become aggressive which frightened and quite shocked her. He seemed drowsy, withdrawn and needed to sleep a lot. She confirms that he was suicidal at times and on one occasion she intervened when he made an attempt to hang himself. He was drinking heavily, although they now have a policy not to have alcohol in the house. She confirmed that the Claimant felt let down by the Army and discarded. He was mostly troubled by his back pain, but also frightened of urinary incontinence so that socialising was very limited. She confirmed the help that she provided to him. She confirmed an improvement from the facet joint injections. However as soon as they wore off he was in a great deal of pain again.
31. Mrs Murphy sets out how distressed her husband was when he was told he would not be able to parachute and when he began to realise he would not regain full fitness. He was desperate to stay in the Army and wanted to be posted somewhere else. She thought that he enjoyed the posting to work on the Olympics, but was still struggling with his back and drinking a lot. She described how he was really depressed when he was told he had to leave the Army.
32. However she says that since leaving the Army he has probably being a lot happier and their marriage has been better. She says that the Claimant still struggles with pain, but not as much as just after he came back from Afghanistan. It is apparent however that he does not get anything like as much pleasure out of his civilian jobs. She confirms that the first two civilian jobs were too much for him and that his current job is better, being less demanding and more regular. Their social life has been particularly adversely affected. The Claimant is exhausted at the weekends. Her life has been reduced to taking care of the children and helping her husband. She is hopeful that matters will improve in the future.
33. Mrs Ford, the Claimant's mother, has provided a statement (TB1/92). She provides supportive evidence of the family's military background and the Claimant's enthusiasm for and determination to join the military. She describes his devastation when he was turned down by the Army on his first application by reason of his IBS. He loved being in the Army and intended to serve a full 24 years.
34. She spoke to her son on the telephone a good deal after his return from Afghanistan at a time when he was still thinking that he would get better and be able to regain his "wings". She describes him as "absolutely gutted" when he was told he would not be able to continue in the Army and was discharged. She says that he was very unhappy and continued to be unhappy for a long time afterwards. She sees less of him now. She lives some distance away and he finds the travelling difficult.
35. In his statement (TB1/96) the Claimant's father confirms the family details and the family's devotion to the military. He says that Mr Murphy had expressed no dissatisfaction with the Army until he felt he was not receiving proper medical treatment for his injury. When he knew that he would not be able to parachute, the Claimant looked to transfer to other regiments which were less physically strenuous, such as Military Intelligence. His view is that the Claimant would have stayed in the Army for a long time. He is aware that the Claimant is no longer able to do the things he enjoyed doing before. He knows he feels the loss of the camaraderie that exists between soldiers and that he has suffered in leaving the military and settling into civilian life.
36. The hearsay statement of Gordon Cairns is at TB1/100. In the circumstances of Mr Cairns being abroad there is no objection to its being put in, but obviously its weight is a matter for me. He left the Army after nine years at the age of 27 and left as a lance corporal. He was a tree surgeon and is now working in Iraq as private security to an oil firm. Mr Cairns and the Claimant were friends from the time that the Claimant joined the same unit in 2008. They were both deployed to Afghanistan in October 2010. He describes the Claimant's excitement at the posting. When he came back from Afghanistan whilst the Claimant was still keen he seemed to be frustrated with the problems he was having getting proper medical treatment. He was going to the medical centre at least three of four times a week trying to get updates and referrals. He was always chasing the process speeded up. Mr Cairns confirmed that the Claimant got a name for himself for being "on the sick". That is a stigma in the unit. It adversely affected his prospects of promotion.
37. Mr Cairns was aware of the Claimant struggling with lifting and even after the painkilling injections he was very cautious. Sometimes he would be quiet because of the pain and would be working "like a robot" and moving in an extremely rigid fashion. Sometimes he had to go home from work early. He describes the Claimant as being "down" a lot of the time and not the "keen young lad" he had known before. He was angry and stressed. He describes the difficulties getting the Claimant back to camp in the car after some of the facet joint injections.
38. Mr Cairns confirms that he was sure given the "buzz" that the Claimant got from army life that he would have served a full 22 years had it not been for the injury.
39. In the bundle there are medical reports from the orthopaedic experts and the dentistry experts. Consultant orthopaedic surgeon, Mr Karpinski, reported on behalf of the Claimant and consultant orthopaedic surgeon, Mr Michael Beverley, on behalf of the Defendant. Their joint statement is at TB1/150. They summarise that the injuries reported at the time are shock or concussion and bruising with strain to the head, neck, right shoulder and back. He required dental treatment. He has had no treatment (other than dental treatment) apart from thoracic spine facet joint injections and physiotherapy or rehabilitation. Mr Karpinski considers that although the case is complex, from an orthopaedic point of view the Claimant suffered minor injury involving the back of the neck followed by a chronic pain syndrome involving the thoracic and lumbar spine. There is associated anxiety, depression and frustration. His orthopaedic injuries would have settled over the course of some two or three months and the subsequent chronic pain syndrome is a biopsychosocial problem. Clinical examination was essentially normal, but he found evidence of anxiety or depression and social stress.
40. Mr Beverley noted the pre-accident history of knee problems. In his opinion, the accident caused a constitutional shock and soft tissue neck, back or shoulder strain with no other significant injury. Such soft tissue strains would normally settle within several weeks or month or two at the most. Mr Beverley notes the subsequent falls the Claimant suffered. He expresses the view that the Claimant remains physically fit for all light and moderately heavy employments on a full-time basis to the usual retirement age. There is no question of advancement or acceleration. He says that there are obvious psychological factors at play and having considered the surveillance DVDs suggested that the Claimant does not appear to be suffering from a chronic pain syndrome.
41. The experts agree that no orthopaedic investigation, treatment or surgery is required. There is no additional degenerative change or arthritis as a result of the accident.
42. When he saw Mr Karpinski the Claimant said that his main issue was chronic pain between his shoulder blades made worse by any physical/mechanical activity spreading into his arms with a numbing feeling and pins and needles. He has had some visual/focusing problems and a ringing/buzzing in the ears. There is referred pain into both gluteal areas. The one or two episodes of urinary and faecal incontinence had settled down. On examination there were no inappropriate signs. The medical records and history were reviewed and set out in the report. Mr Karpinski identifies that the only positive finding on X-ray and MRI is of a slight disc generation of the thoracic spine which would be considered to be constitutional in nature and non-traumatic. There were specifically no other degenerative changes with no fractures and no acute lesion.
43. Mr Karpinski identifies that the records exclude any loss of consciousness. No cause for the ringing and buzzing in the ears or the visual disturbances can be found in relation to the accident in question. The soft tissue neck injury would have resolved within three months from a physical point of view.
44. Mr Beverly saw the Claimant in July 2014. At that time Mr Murphy said that his problems had plateaued, but he was left with pain between the back of the shoulders radiating to the back of the right shoulder and upper arm and also low backache sometimes going the back of the buttocks or thighs. The Claimant was able to walk a mile, but had problems with lifting and carrying. He described being occasionally incontinent. Examination was essentially normal. Mr Beverly interprets the x-ray as showing minor age-related degenerative change, but otherwise reasonable posture and disc spaces. Otherwise the x-rays taken are normal. Again the records are reviewed. Mr. Beverly considers that the Claimant's account in his statement of the findings on the MRI scan is a "somewhat alarming or exaggerated account". Having reviewed the evidence Mr Beverly concludes in similar terms in respect of the orthopaedic injuries and says that there is no neurological lesion that he can see referred to or found in any of the medical records and that the symptoms the Claimant complains of are compatible with stress, anxiety or non-organic disease. Thus he expresses the opinion that the accident resulted in soft tissue strains and a constitutional shock from which he would have expected a full recovery over the course of several weeks or a month or two at a maximum.
45. The falls referred to are set out in the records. On 23rd September 2011 it is recorded "fell off bicycle yesterday injuring left thoracic back". A full range of movement is described and, importantly in my view, no "re-inflammation". There is reference to this road traffic accident complicating the situation. On 20th September 2012 there is a record saying that he fell on the previous Tuesday hitting his head on the ground resulting in swelling and bruising to the left side of his face. There is a record that he fell down the stairs in 2011 and hit his back. Mr Murphy was taken to that entry in cross-examination, but could not recall it. It is right to say that the incident is only mentioned in the context of matters referred to in a hospital appointment which concerned the consequences of the injury in Afghanistan.
46. Thus the orthopaedic experts agree that there will be no additional degenerative change or arthritis. X-rays show minor age-related degenerative change, but reasonable posture and disc spaces. The various views are described as essentially normal with no significant degenerative change.
47. Dental evidence was provided by Mr Briggs whose report is at TB1/413. He concludes that in consequence of the accident in October 2010 the Claimant required root canal treatment. The restoration will need to be replaced approximately every 15 years. In addition he sustained a distolingual fracture which required a new amalgam restoration. The root canal treatment to a third tooth was either caused by the trauma of the accident or by the failure of the Army dentist to remove all of the decay present in the tooth.
48. The Claimant relies on the pain expert, Dr Munglani. He gives a diagnosis of CWP which follows a typical pattern of being better with rest and then getting worse. This is a lifelong condition and will continue to produce functional disability in respect of very heavy lifting and physical work and work involving a hectic pace and stress. Dr Munglani is of the view that the accident in October 2010 led to the development of CWP. The Defendant relies on the report of Dr Dolin who says that the Claimant had more or less recovered by early 2011 and, considering records, there is then "clear blue water" before the development of symptoms of CWP. Thus he says the chain of causation is broken. Dr Dolin expresses the view that CWP can develop spontaneously. He relies heavily on the entries which are in TB5/1733, 1730 and 1729 in support of the argument about "clear blue water". The Defendant says that the Claimant is put to proof that but for the accident he would not have CWP now.
49. In terms of psychiatric evidence, the Claimant relies on the evidence of Dr Spencer who considers that the Claimant began to develop depression in about December 2010 when he realised that he might not recover. He recommends CBT and feels that an end to the litigation will have a good effect. There is a high risk of relapse. For the Defendant, Professor Maden considers that once the litigation is complete and with some CBT there will be no further psychiatric/psychological problems. Professor Maden considers that the Claimant developed an adjustment disorder in late 2012 when he knew that he would not be able to parachute again and would lose his career. These areas of dispute between these two sets of experts, pain and psychiatry, represent the heart of the issues in this case.
50. Dr Munglani's report is at TB1/154. He describes the Claimant's recovery following the accident as patchy and undulating and that he has been left with chronic thoracic and lumbar pains and odd feelings in his legs and back. He does not consider that the accident where the Claimant was knocked off his bicycle was as significant as the index event. He describes it as incidental. He sets out that the Claimant has also developed stress and low mood. He notes that the Claimant was stopped from parachuting following the MRI scan. He considers that following the accident there was, from a pain medicine point of view, an increase in pain and perception of pain symptoms for one year to 18 months after the accident and thereafter those musculoskeletal symptoms are likely to have settled to a nuisance value level and the ongoing experience of symptoms and disability is due to psychological/psychiatric factors. He recommends treatment from a pain psychiatrist.
51. He sets out the history of iliotibial tract pain in 2009 before the accident and then the history of symptoms post accident including some apparent improvement as early as 4th November 2010 and then deterioration on 5th November with thoracic back pain on 18th November noted to be improving and then plateauing and continuing with improvement in other symptoms by 6th December apart from pain in the thoracic spine which is described as constant with paraesthesia in the shoulders up to the elbows and slight neck pain on movement and being very tender over T6. It was felt that no further treatment was required and the Claimant was following his own rehabilitation programme. In January 2011 he developed transient blurred vision, ringing in his ears and pain in the back of his head. He was given diazepam and co-codamol, but was improving. It is noted on 3rd February 2011 that he only managed one run and was feeling unwell with some sickness, but by 11th February the notes identified him as having no problems at all now and no tightness in his upper thoracic or cervical spine. He had been on exercises. However, on 18^th February 2011 whilst doing some combat fitness training he developed pain after 10 minutes and had to discontinue. The note reads that his back has not completely settled following the injury in Afghanistan. His back is described as still painful in February and March with symptoms in April and arm numbness in May. He was noted to have reduced sensation in his lumbar spine and leg with reduced anal sphincter and normal sacral sensation.
52. Meanwhile disc degeneration at T6/7 was noted in May 2011. He had symptoms in May including back pain, numbness and faecal and urinary incontinence with decreased perianal sensation and cauda equina was considered. In June he was prescribes zoplicone and co-codamol, but was considered to be fit for duty within limits. He was reported as struggling to sleep in June with mood swings in July and thoracic back pain continuing into September. The incident on the bicycle was reported in September. He was seen in the pain clinic on 29th September 2011 when he had a good range of movement and minimal tenderness. He could only walk for 10 or 15 minutes and in November 2011 he had the facet joint injections. He improved thereafter and able to run 5 or 6 miles twice a week. He had some pain and his symptoms are described as being "aggravated slowly with fatigue". He was ongoing in rehabilitation until in January 2012 he is described as feeling well and keen to return to running. He had full lumbar spinal flexion and was able to push 140 kg. In February he is described as medically fully deployable, but in light of the pathology seen on the MRI further advice was sought with regard to parachuting. He was upgraded to fully functioning, but with the suggestion that he did not parachute. He was declared unfit to parachute on 16th February. In October there is a note which reads "continues to overemphasise physical disability, feels there is muscle wasting, usually cycles everywhere but finding even walking tiring".
53. The Claimant was requesting medication. The records show backache and a request for more pain relief in November 2012. It was noted that he had improvement following the injections in October 2011 until he was covering the Olympic Games in the summer when he noticed his pain started to come back. On 5th December 2012 the note reads "mixed anxiety depressive disorder". He was having problems in his relationships and was snappy. He felt his regiment had abandoned him. He was referred to the community mental health team. He had further facet joint injections in January 2013. He was referred to occupational health. In January 2013 he was able to walk about a mile and then had to lie on the floor for about 15 minutes. He was not able to fire a weapon. He had been downgraded, upgraded and downgraded again and was recommended for medical discharge. He was still being prescribed strong painkillers in February 2013.
54. In August 2013 the main pain was between the Claimant's shoulder blades made worse by any physical or mechanical activity. He had some burning pain. He had a constant chronic ache around this lower back pain into the gluteal areas, one or two episodes of urinary incontinence and bowel incontinence which had settled down. He was quite fatigued and took "power naps". He struggled lifting and playing with the children and with all household chores.
55. At the time of Dr Munglani's report in November 2013 he was managing the infrequent episodes of incontinence by dehydrating himself in the daytime. He was trying to push through the pain barrier and continued to walk and to engage with family life. He was exhausted after work and prolonged periods of sitting, walking or standing would cause numbness in his gluteal muscles and pain into the area of his shoulders and into both armpits. Pain was described as constant and worse with activity. His pain score was as high as 9 (out of 10) in his upper back. He reported drinking too much. Pain woke him at night and could make him aggressive.
56. The Claimant described thinking that when the pain was bad it would do him harm and he had an image of the prolapsed disc coming out further and "pressing".
57. Dr Munglani describes the accident (whether or not the Claimant lost consciousness) as a real shock to the system. He considers that this was a far more significant event than the notes at the time would indicate.
58. Examination revealed that the Claimant's affect was low and he was rather over attentive to his symptoms in the sense that he was aware of areas of tenderness in the thoracic and lumbar spine. Dr Munglani felt that the Claimant had become rather entrenched into a cycle of pain and disability and had become more rather than less disabled with time. He describes that from a pain medicine point of view the index event was significant and the Claimant suffered essentially a whiplash-type injury. He says that the Claimant experienced some really quite odd symptoms soon afterwards. The odd symptoms in his feet do suggest some sort of spinal shock picture in his view. He concludes that the Claimant probably was improving, but then developed a late whiplash-type picture. He considers that the symptoms experienced by the Claimant are real and there is a somatoform symptom disorder element or a psychosomatic element. Thus his very minor residual symptoms are associated with significant disability.
59. Dr Munglani concludes on balance that this is due to the index event (subject to a psychiatric opinion). He feels that once patients have suffered an injury and experienced pain, the best predictor of a future episode of pain is a past history of the same.
60. He concludes that but for the index event the Claimant would never have had the MRI scan and would probably not have experienced pain in the thoracic region of the severity that he has. From a pain medicine point of view therefore he attributes the ban on parachuting to the index event.
61. Dr Munglani then reviews the report of Dr Spencer and feels able to conclude that there is no past medical history of note and that following the accident in October 2010 the Claimant began to develop depression within a period of a month. The physical symptoms are low and do not require any specific treatment, but are being maintained and enhanced by the psychological/psychiatric factors. He feels that vulnerabilities in the spine can be made symptomatic by an accident and minor symptoms exacerbated by psychological factors. He reviews the report of Dr Beverley and the psychiatric report of Professor Maden.
62. Dr Munglani expresses the view that any orthopaedic component of the injury would have settled within 2 to 3 months of the accident. However pain syndromes including myofascial pain syndromes are, he says, more complex than simple orthopaedically-derived trauma. He therefore feels that the pain-related symptoms have gone on much longer, 18 months or so, but that even after they had settled the Claimant is left with psychological/psychiatric symptoms.
63. He does not consider that the fall from the bicycle altered the course of events. He feels that the myriad of symptoms are attributable to the index accident because they are contemporaneous.
64. He disagrees with Dr Dolin about recovery within a period of 2 to 3 months. He agrees with the diagnosis of CWP, but feels that there was an ongoing development of pain syndrome which would have some persistent physical factors as well as psychological factors. He agrees that the Claimant's symptoms became more widespread from 20th January 2011.
65. He sets out why he disagrees with Dr Dolin view that there was a period of "clear blue water". The Claimant remained medically downgraded and was displaying symptoms. He feels that if there had been clear blue water of even one month that would not be enough in pain medicine terms to be considered a break in causation or attribution. He feels it reflects the undulation of symptoms and considers that "muddy grey" would be a better description than "clear blue". He says there are no risk factors for the development of CWP pre-accident. He agrees that there is an incidence of spontaneous development of CWP which is about 3% per annum although he feels that the Claimant would fall into a more robust, that is, less susceptible to CWP, category of individual. He feels therefore that the incidence of risk for the Claimant would have been much lower. In the period of "clear blue water" referred to by Dr Dolin there would be a less than 0.3% chance of the development of CWP. Given the studies relating to the role of physical trauma in the onset of CWP (TB1/241) which conclude that physical trauma in the preceding six months is significantly associated with the onset of the condition, then on a balance of probabilities it is more likely than not that one can attribute the onset of CWP in the Claimant to the index event rather than spontaneous onset.
66. Dr Munglani disagrees with Dr Dolin's view that the previous history of knee pain which Dr Dolin describes as chronic because of the length of time it persisted (more than three months) shows a pre-disposition to CWP because in his view it relates to training too hard in the military and because the Claimant recovered.
67. His opinion is not changed having seen Professor Maden's report. He does not consider that the surveillance evidence is out of keeping with what the Claimant said he was able to do. He has no concerns about the Claimant's reliability. He acknowledges that patients who are distressed by their symptoms will describe them in detail, but that is not an exaggeration. He points out that the Claimant has tried hard to mitigate the effects of the accident in his view.
68. Dr Munglani maintained his view when he was cross-examined. He felt that there was a transition from a physical to a psychological/psychiatric case for the symptoms. He accepted that the Claimant was deemed to be combat fit in February 2012, but considered that the Claimant did have ongoing symptoms and a pain syndrome in light of the long history from October 2010. In his view this represents an undulating history in a man whose physical symptoms were diminishing whilst his psychological/psychiatric symptoms were coming to the fore. Moreover at that time he was still undergoing treatment. Dr Munglani said "we know soldiers do things when they are not fully fit". When considering the notes he pointed out that in his view the Army would be assessing at what date they could put him back out on duty. He disagreed that the MRI was taken to exclude cauda equina only since it was an MRI of the thoracic spine as well. Dr Munglani's view was clear that there were ongoing symptoms at that time.
69. He considers it important that Claimant was keen to get back to his job. He repeated throughout the cross-examination that one cannot simply take a single entry in concise notes not made for the purposes of litigation. One has to look at the history as a whole. An entry reading "patient much improved" may simply indicate that a Claimant with undulating symptoms is having a good day and the notes do not say "symptom-free". He referred to the fact that chronic pain syndrome involves a series of episodes, but emphasised that the pain syndrome had been established over a long history up to February 2012. It had become entrenched. The Claimant would have become very focused on his symptoms over that time. He describes progress as "wobbling". By reference to the records he disputed that there was any evidence of the Claimant getting better and better and better and felt that Dr Dolin had focused on a very narrow time point and a narrow reading of the notes, not looking at what happened immediately thereafter, for example, in the period 11th February to 18^th February 2011.
70. He felt that Dr Dolin's interpretation was wrong and did not fit the evidence. Dr Munglani felt there was no uniform improvement here. He felt that the pattern fitted very well with the syndrome, namely, some improvement and then the Claimant or others pushing him too hard and so there is a deterioration. He might have the capacity to do something but not the endurance and he would do something for period of time and then would have a significant relapse.
71. Dr Munglani did not feel that either the incident where he was knocked off the bike or fell down the stairs was significant. Dr Munglani's clear view was that he did not think that the Claimant would be as he is now had it not been for the accident which is the subject of claim. He felt that the pain had been established before the subsequent accidents there is no indication of any fresh injury. He repeated that he did not think that the earlier knee pain was significant since a full recovery seemed to have been made. The Claimant had been assessed medically as P2 (fully fit) all the way up to October 2010. He felt it was a simple problem which was amenable to treatment. Dr Munglani acknowledges that a history of IBS is an indicator for psychosomatic pain.
72. Dr Munglani felt that the development and maintenance of the difficulties included psychosocial factors such as stress on his marriage, his drinking and his disappointments and vicissitudes. He agreed that CWP has a causation mechanism which is unknown and there can be causes other than trauma and that some CWP is of spontaneous onset. He repeated the statistics set out in his report and said that whilst of course there was the possibility of spontaneous onset of CWP, in this case "staring us in the face" is the index accident which was a very significant event and in the context where it is known that trauma is a triggering factor in a percentage of patients. He summarised by saying that the chances of getting CWP without trauma are very low and it is much more likely after trauma. He felt that this Claimant, a fit man without vulnerabilities was unlikely to develop CWP without an accident.
73. He accepted that there was a possibility even without the index accident of the Claimant developing chronic regional pain at a later date but he had an established picture of CWP which developed after this accident and was established by February 2012. Therefore on a balance of probability he feels that this was part of the ongoing condition attributable to the accident albeit one which followed an undulating course. He knows of no reputable trauma expert who would say that CWP cannot be due to trauma. He sees 10 new patients a week and felt that the majority of the cases were attributable to trauma. He said that the majority were road traffic accidents. He felt that he and Dr Dolin had agreed that the diagnosis was CWP.
74. He concluded that this was a classic sort of pattern of not getting better, not improving and "wobbling".
75. The joint statement of Dr Munglani and Dr Dolin is at TB1/308. Dr Munglani's view remains the same in the joint report. He and Dr Dolin agreed that the degenerative changes in the thoracic spine shown on MRI were likely to be pre-existing. They recognised that such degenerative changes can act as a site of vulnerability once trauma or the onset of pain has occurred. They both agreed that the Claimant did suffer with pain initially mainly in the thoracic region which has become the focus of his problems. While Dr Munglani agreed that they would be higher proportion of cases of CWP which were spontaneous compared to those which were secondary to trauma, the population of non-injured people is far larger than the population that is injured. Injury rates in the UK at work only being 1.8% per year. Using European figures 35,000,000 people a year will attend hospital with an injury out of 500 million so that he traumatised population may be 7% thus statistically if 7% of (injured) people give rise to 1/3 the cases of CWP whilst 93% of (non-traumatised) people give rise to two-thirds of cases of CWP then trauma is far and away the more likely cause.
76. Dr Munglani and Dr Dolin agreed that the surveillance evidence did not show the Claimant doing anything which was out of keeping with what he told them or with their examinations. They agree the diagnosis of CWP which will be long-term and which will undulate, but from which the Claimant will never be symptom-free. CBT or related talking therapies might ameliorate the symptoms. They recognised the usefulness of pain management/functional rehabilitation. They acknowledged there would be limits on what he could do. They both accepted that the Claimant is genuine in appearance and they had no reason to doubt that. He has found a further job and done much to mitigate the effects of the loss of his Army career.
77. Dr Dolin, the Defendant's pain expert has provided a report dated 2^nd December 2014 which is at TB1/266. There is an addendum report at TB1/305 and of course his comments in the joint statement with Dr Munglani. As is apparent from the matters I have set out above, it is Dr Dolin's view that the diagnosis is CWP characterised by widespread pain, widespread muscle tenderness and fatigue. However he takes the view that he pain and altered sensation in the left leg underwent spontaneous improvement with physiotherapy in the weeks following the index accident and appears to have resolved approximately three months following the index accident. He says that following a period of improvement the Claimant's symptoms became more widespread occurring in the current widespread pain sites.
78. He considers that the causation of the CWP appears to be unrelated to the index accident as it occurred after a period of improvement. Thus he concludes that there is a lack of continuity between the index accident and the onset of widespread symptoms. He notes that the Claimant also suffers from anxiety and depression. He does not attribute any causation to the anxiety and depression. He concludes that the index accident caused period of thoracic pain and altered sensation in the left leg for a period of up to 3 months but not beyond.
79. The Claimant gave Dr Dolin an account of never being pain-free, but experiencing moderate pain about 65% of the time and severe pain about 35% of the time. The pain was worse with exercise and movement, but better with rest and adjusting his position.
80. Dr Dolin reviewed the records most of which I have already referred to above. The diagnosis of chronic widespread pain is based on the widespread pain reported, widespread muscle tenderness and fatigue. Dr Dolin considers that the MRI scan of the thoracic spine was within the normal range of what one would expect to find a physically active man in his 20s. He feels that the Claimant is suffering from anxiety and depression, but defers to the psychiatric experts in terms of causation. The prognosis is that the condition (CWP) is unlikely to improve or worsen of its own accord in the foreseeable future. However, the consequences of the accident resolved after about three months in his view. He would agree that the possible treatments for CWP are cognitive behavioural therapy and rehabilitation. He expects that the Claimant will be able to work full-time in an administrative capacity until the normal retirement age. He could do, Dr Dolin feels, more physical activity, but that would have to be done in a more gentle and graded fashion than he did previously.
81. In the joint statement Dr Dolin considers that there was no formal diagnosis of the Claimant's symptoms in his knees, thighs and buttocks in 2009 which had lasted for six months. Chronic pain states are those which persist for longer than the usual time of recovery, namely, three months and so Dr Dolin forms the view that there was a pre-existing chronic pain problem.
82. Importantly, at paragraph 13 Dr Dolin sets out what are in his view the 4 significant medical records: firstly on 24^th November 2010 when "a significant improvement" was noted in the Claimant ran for 30 minutes with 10 kg load without problems; secondly, on 8^th December 2010 when it was recorded that there was "little that concerns [the examining doctor] at present"; thirdly on 9th December 2010 it was recorded that "all symptoms are improving with time and exercise"; and fourthly on 12th January 2011, 10 weeks after the accident "pain has improved but still has slight numbness". Thus Dr Dolin felt that where the records show widespread pain starting towards the end of January this occurred after a break following resolution of the initial symptoms.
83. Dr Munglani was cross-examined about this and expressed the view already set out that one cannot take single entries one at a time; one has to look at the overall picture. He relies on the fact that he Claimant was not actually deployed on his former duties at any point after the accident even though in February he was upgraded to P2. It is Dr Munglani's view that there is no period of time either between the middle and the end of January or later in February when there was an improvement.
84. In his initial report and in the joint statement Dr Dolan set out the clear view that the period of "clear blue water" that he referred to was between 10th January 2011 and 20th January 2011. In the course of his evidence, however, it almost immediately became apparent that Dr Dolin, had at a point sometime before the trial, changed his mind. He considered that the date of recovery was 11th of February 2011. He considers that 11^th February is a better fit for the recovery date which is when the Claimant passed a fitness test and was described as fit for full duties and being a "vastly improved". In his evidence he said that it was at this point that the Claimant was graded P3R so that within a whisker of the three-month period, the Claimant was "nearly there".
85. This change came after he had prepared his own report, after he had seen the records, after the single joint statement and after his meeting with counsel. He said that he had altered the date but not his overall opinion. It seems that an attempt was made to admit this late change of expert opinion which was refused. Hence Dr Dolin's original report remained the evidence before me until he referred to the change of date in his oral evidence when additional amended pages for his report and the joint statement were inserted in the bundle. The thrust of those amendments is to remove the reference to the 12th January date and to fix Dr Dolin's opinion to a recovery period of approximately 3 months without specifically relying on a new date. Of course that is artificial since Dr Dolin clearly does rely on the date of 11th February, albeit the period of "approximately three months" is not inconsistent with that date.
86. It is this period of recovery after a short time and then a gap before the development of widespread pain that is the foundation of Dr Dolin's opinion and, hence, the Defendant's case on this point. The improvement and then the small gap in time before the development of widespread symptoms is what causes Dr Dolin to say that it is not attributable to any trauma, but was of spontaneous onset. His opinion is that even if there had been no accident, the Claimant would be in the same position. Nonetheless he did concede that trauma could be one of a whole range of things which could be included or excluded as a cause or contributing factor. Although he criticised some of the research in respect of road traffic accidents (referred to by Dr Munglani) as being of low quality, it seemed to me that essentially what he was saying was that since the mechanism of CWP is unknown one cannot exclude or include any particular cause. In this case however was excluding the trauma of the index accident because of the improvement in symptoms.
87. One of the difficulties with the way in which Dr Dolin's evidence emerged was that of course initially he felt that the gap in symptoms was earlier and so the entries on 20^th and 25th of January 2011 showed the first occurrence of CWP after the initial improvement. By reference to the later date relied on, he said that those entries reflected a decline during the period of recovery.
88. Dr Dolin was, of course, in a very difficult position by reason of this change of opinion as to the relevant date of recovery which he was unable properly to put forward.
89. The report of Dr Spencer, the Claimant's psychiatrist, is at TB1/326. He answered some questions (TB1/367) and the joint report between Dr Spencer and Professor Maden is at TB1/402. He diagnoses the Claimant with depression, timing the onset of symptoms of depression to the first month or so following the Claimant's return to the UK. He considers that the Claimant suffers from depression and associated anxiety symptoms in addition to chronic pain disorder. The psychiatric difficulties have a significantly negative impact on his quality of life and significantly impair his functioning in the workplace.
90. Dr Spencer does not identify any evidence of pre-accident history of any psychiatric or psychological difficulties. He therefore finds on a balance of probabilities that the current problems are attributable to the index accident and the injuries sustained and pain and disability caused. He recommends medication and psychological treatments. The ongoing pain and disability are powerful maintaining factors exacerbating and perpetuating the depression. Similarly the depression is serving to exacerbate and prolong the chronic pain disorder. Although it will not be easy, he considers that the Claimant is strongly motivated to improve and with appropriate treatment should experience significant improvement in his level of pain and disability. He will remain at an increased vulnerability to relapse into depression, however.
91. Dr Spencer sets out the history of the accident and symptoms and describes how the Claimant became tearful, still feeling very upset about having to give up his career in the Army. He also displayed a strong sense of guilt and shame at the stigma which he feels was placed on his wife when he returned early from deployment. He expressed some ongoing suicidal ideation although indicated that he would not attempt to take his own life again.
92. Dr Spencer notes that Mr Murphy's sister suffers from anxiety and takes some medication. There is no other family psychological/psychiatric history of note. He, too, described Mr Murphy's "flat affect" (paragraph 66 TB1/345).
93. Dr Spencer reviewed the records which show poor sleep and decreased energy levels in January 2011. Mood swings, anger with his wife and poor sleep are recorded in July 2011. The Claimant is reported as being totally fed up in August 2011. He notes the entry in relation to not being able parachute in February 2012 and the note on 21st February which says that although he will not being able parachute the Claimant should be able to pursue a full career in service. In October 2012 he notes the entry in respect of decreasing weight and anxiety about his career and family commitments. He appeared tense and anxious in October. In November 2012 medical discharge was being discussed. Anxiety was noted in November as well. On 5^th December 2012 the diagnosis of mixed anxiety and depressive disorder was made. He was described as being moderately anxious and mildly depressed. Dr Spencer notes Dr Munglani's opinion that the Claimant was experiencing widespread pain as manifestations of his low mood, i.e. that there is a somatoform symptoms disorder element or a psychosomatic element.
94. Thus the diagnosis is of a major depressive disorder currently presenting as a moderate depressive episode. The Claimant has associated anxiety symptoms. Similarly the diagnostic criteria for chronic pain disorder are in Dr Spencer's view, met. The lack of any history of such difficulties causes Dr Spencer to conclude that the Claimant's development of depression is consistent with and relates solely to the index accident. He recommends medication and psychological therapies to address both the depression and the anxiety. He gives some costings for those.
95. In the answers to the Part 35 questions where he was specifically asked to consider the "clear blue water" between 9th December 2010 and 12th January 2011 he doubts the premise because of the fact that the Claimant was PULHHEEMS classified at P7, that is, "medically fit for duty with major employment limitations" throughout this period. He saw nothing on the DVD evidence that was inconsistent from a psychological perspective with the account the Claimant gave him. When asked about Professor Maden's concerns about the Claimant's reliability as an informant and exaggeration of his problems, his evidence was that he had no such concerns.
96. The experts in their joint report expressed their differing views about diagnosis and causation. They agreed that the Claimant was not in a position of significantly increased psychological vulnerability at the time of the index accident. They agreed that the difference in their diagnostic opinion could be seen as one of degree and agreed depressive and adjustment disorders lie on a continuum and can fluctuate in severity over time. Thus their opinions may reflect the different presentations of the Claimant when examined. The real dispute is about timing and therefore causation. They agreed that following the accident the Claimant reported anxiety symptoms. They agreed that there are interactions which are significant between pain and psychological factors. They agreed that pain and disability have contributed to the depression or adjustment disorder (depending on each expert's view). They agree that psychological factors including the Claimant's sense of perceived injustice, pain-related anxiety, catastrophisation, over attention to symptoms, the ongoing litigation and anger, distress and frustration are likely to be contributing to the levels of pain and disability.
97. Dr Spencer's diagnosis of chronic pain disorder takes the Claimant's account at face value. Professor Maden considered that such diagnosis (CWP) is within the range of reasonable opinion, but that he would not make that diagnosis on the balance of probability because of the apparent inconsistencies in the Claimant's presentation. Professor Maden expressed concerns about the reliability of the Claimant's account, reinforced by the surveillance evidence.
98. Whilst Dr Spencer attributed the development of depression to the index accident, Professor Maden believes that the Claimant's mental health problems were attributable to the difficulty in coming to terms with the loss of his Army career, relying in particular upon the timing of the appearance of mental health problems which he suggests was in the latter part of 2012 looking at the records. Professor Maden also believes that problems have been exacerbated and prolonged by domestic tensions, heavy drinking and failure by the Claimant to seek help for his difficulties soon enough. Dr Spencer feels that the excessive use of alcohol was a form of self medication consequent upon the pain he was experiencing and that the symptoms are attributable to the accident.
99. Professor Maden believes that the current psychological symptoms are minor and will remit without treatment when the litigation concludes. Dr Spencer feels that the Claimant would benefit from the treatment referred to in his report. In particular he feels that the Claimant would benefit from attendance on a multidisciplinary pain management/functional restoration programme which should be undertaken after the end of the litigation. Dr Spencer considers that there is a significant risk of relapse and/or failure to remit in respect of ongoing symptoms. Professor Maden considers that the outcome is optimistic following the end of the litigation. He takes the view that the prognosis is good so long as the Claimant refrains from harmful drinking which he considers to be a matter of personal choice. Given that the Claimant has not sought or required treatment for depression to date Professor Maden feels he is unlikely to do so in the future. Dr Spencer believes that the Claimant's ongoing and long-term difficulties constitute a reduction in his competitiveness in the workplace whereas Professor Maden feels that the Claimant is psychiatrically fit to work.
100. When he was cross-examined Dr Spencer agreed that the first diagnosis of a psychiatric disorder in the records is on 5th December 2012, but looking at the history he considers that there are a number of references from much earlier on to show that the Claimant was becoming depressed and feeling hopeless. He had difficulties with frustration and sleep. He suffered from mood swings and at interview reported a history of low mood from an earlier date. The entry for 5^th December 2012 is the formal referral to someone else and therefore, particularly given that medical records are not a symptom diary, there are likely to have been symptoms before such referral. The case concerns the development of a complex psychological condition occurring in relationship with pain symptoms. Dr Spencer was asked and specifically said that he had no reason to believe that the Claimant gave him anything other than a straightforward account. In confirming his view about the timing of the psychiatric/psychological disorder he confirms that it has to be seen in the context of the undulating symptoms of the pain disorder and also that there are features such as the reported weight loss due to stress which it must have been ongoing for some time before they were reported. He felt that the Claimant was more likely to be reporting physical difficulties than mental difficulties at the time, particularly to the Army doctors.
101. He confirmed he would place little weight on the significance of the family history of anxiety in the Claimant's sister. He emphasised that catastrophisation is not the same as exaggeration. It is beyond the Claimant's control and arises from fear. His sense of loss will have coloured the Claimant's language so that using phrases such as "left to languish in the barracks" is not an uncommon response to the Claimant's situation. He feels that CWP straddles the disciplines of pain management and psychiatry and the functional programme and pain clinic programme address both aspects.
102. He disagrees with Professor Maden's diagnosis because the diagnostic criterion for an adjustment disorder is something which lasts no more than six months and even with ongoing stressors no more than two years months. He agrees that such a diagnosis and his own lie on a continuum.
103. Professor Maden's report is at TB1/375. He sets out the history. He describes a "family history of mental disorder" given that the Claimant's sister had a breakdown when under pressure from school just before sitting her GCSEs. She has not worked consistently since then because of anxiety. He describes the Claimant's return to the UK and the delay as the Claimant saw it in undergoing the MRI. He was taking a great deal of medication, but stopped because it was making him aggressive. He began to drink far too much. The Claimant told Professor Maden that this was because medication was not controlling the pain and he needed something to "top it up".
104. He sets out the Claimant's account of his psychiatric symptom history. The Claimant's first suicide attempt was, as far as he recalls, in early 2011 just after his return to the UK while waiting for the MRI. He described its aggressive reaction to the medication particularly when combined with alcohol. He described his low mood swings, his feeling of abandonment and the fact that he wanted to get back to Afghanistan. His second suicide attempt was in the autumn of 2012.
105. Although the Claimant had begun to control his alcohol consumption by not having any in the house, when Professor Maden saw him he had had a bout of heavy drinking following the death of his stepmother and her funeral.
106. At interview the Claimant was often close to tears when discussing his lost Army career. He expressed his significant frustration and resentment towards his former employer, the MOD, and his regiment.
107. Professor Maden reviewed the records. He sets out as well as the medical records some of the Claimant's Army appraisals which are on the whole very positive and show the Claimant's commitment to the Army.
108. In his general comments Professor Maden expressed concerns about the Claimant's reliability as an informant. In particular this related to his alcohol consumption and the account he gave about the state of his marriage compared to the account given by his wife. He felt it was likely that the Claimant was exaggerating the problems when speaking to him. He noted the exaggerated description of the MRI scan and pointed out the different accounts of difficulties with urinary incontinence. In this section he also makes reference to the undocumented medication the Claimant says he was given in Afghanistan. He expresses his view that the Claimant would, reasonably, have pointed out the difficulties with his mood and consequences for his marriage of taking such medication. He notes that there are references to the Claimant overemphasising his physical debility. Professor Maden agrees with the record suggesting that there is an attempt to "medicalise a career dilemma". He feels that the Claimant's failure to seek help about mental health issues and other problems from his GP is inconsistent with his account of the severity of the problems. He says he is not convinced by the Claimant's explanation of having lost trust in doctors because of his experiences in the Army.
109. He concludes that the Claimant did not develop significant mental health problems until late 2012 and that this is a view which is supported by the fact that there are only a few references to mental health in the records, where the Claimant he appears to have been enthusiastic in pursuing two alternative postings and where he appears to have been performing well in the jobs he was assigned to back in the UK.
110. Professor Maden concludes that there is no psychiatric injury caused directly as a result of the accident. He diagnoses an adjustment disorder, but not a depressive episode. He feels that harmful use of alcohol has complicated the Claimant's problems. He says at paragraph 202 that a persistent somatoform pain disorder is a possible explanation for his pain, but he does not believe it can be sustained on the balance of probabilities. There is evidence he says of some deliberate exaggeration. He feels that the mental health difficulties are due to be Claimant's difficulty in coming to terms with the loss of his Army career.
111. Professor Maden feels that at the end of the litigation the Claimant's mental state will return to the way it was before the onset of the current symptoms. He feels that the Claimant would have had a psychiatric reaction to being unable to continue parachuting. The main cause of the mental health problems in Professor Maden's view is that he cannot continue in his Army career.
112. Professor Maden provided a supplementary report which is at TB1/399 after he had seen the surveillance footage. He says that the footage shows a man behaving normally in a range of settings and at different times of the day. He feels that the surveillance shows that the Claimant is not as troubled by significant fatigue as he reported to him. He does not think that it shows any abnormality. He says that the footage increases his concerns about the Claimant's reliability as an informant and also about exaggeration of his problems. He says that his reported symptoms appear incongruent with his day-to-day behaviour. He feels that a somatoform pain disorder is a most unlikely diagnosis. He says it is impossible having seen the footage to understand why the Claimant would feel too tired to swim.
113. When he gave his evidence in chief Professor Maden said that a factor in the Claimant's problems might be the family history (in his sister). When he was cross-examined he acknowledged that he was the only expert who questions the Claimant's veracity. Despite the extensive repetition in his reports of his doubts about the Claimant's veracity when he was asked about that, he said that he felt that it was not an attack on the Claimant, but a warning to the court as to the possibly shaky foundations upon which opinions (presumably by the other experts who do not question the Claimant's reliability) were being based. He said that the differences in the account of alcohol use were important because alcohol consumption might be a possible explanation for the Claimant's mood symptoms. He said that he did not hold the Claimant's inconsistencies against him, he was just "flagging it up". He felt that if he could check a matter referred to by the Claimant that was one thing, but if he could not check then he had to be aware that the Claimant's account may be unreliable. By "checking" it seemed he was referring to finding another source of information on a point. On reflection he felt that he would withdraw the word "powerful" in the phrase (TB1/399-400) "[the Claimant's behaviour in the underground station] is powerful evidence against the claim that he is troubled by significant fatigue".
114. Professor Maden said that he was "absolutely categoric" before July 2012 the Claimant did not suffer from any diagnosable psychiatric disorder. He does not agree with the diagnosis of depression made in December 2012. He feels that the main cause of the Claimant's mental health problems is that he cannot continue in his career in the Army and he thinks that it stems from July 2012 when he was turned down for the Intelligence Corps.
115. When I asked him some questions Professor Maden said that was not suggesting that there was deliberate misrepresentation on the part of the Claimant. He said that in a somatoform disorder, the important feature was not the level of the pain, but the extent to which it causes disability. He felt that the assessment of disability was a very important aspect of a diagnosis which rests on a subjective account. He considered that there was no disability shown here.
116. I heard evidence from two employment experts with significant experience of giving opinions about the likely careers in the Army. They were both impressive witnesses and in the event the areas of dispute between them were very narrow indeed. Their evidence was largely based on statistics. I do not intend to set out their lengthy reports in great detail, although I do need to consider some of the matters which are relevant to quantum, but which were not explored in oral evidence. The two issues were: but for the accident, the Claimant's likely length of service in the Army and; the date upon which he would have been promoted to Sergeant.
117. On behalf of the Claimant there is a report from Sophia Ahern of DJ Fox and Associates Limited (TB4/1455). She sets out at the beginning of her report some helpful background information in relation to the full non-commissioned rank structure in the British Army, the PULHHEEMS qualities, the Army medical categories, details of the medical deployment standard and the medical discharge policy.
118. Miss Ahern identifies that a soldier's length of service is generally determined by three factors: the need and willingness of the service to retain the individual; the individual's physical ability to serve; and his desire to serve. The statistics show that only 16% of male Royal Engineer recruits serve for 22 years. Of course there are reasons why soldiers leave the Army which are related to the impact on family life and also a lack of promotion. Similarly frequent operational tours can become less attractive whilst at the same time life in barracks can become boring. There are reasons why people stay in the Army including the fact that they are more likely to experience a reduction in earnings on leaving, and the Army provides dental and health care, job security, pension and so on.
119. Miss Ahern sets out the average career progression for soldiers in the Royal Engineers. She reviews the Claimant's annual reports (SJARS) and concludes that the Claimant was at least an average soldier who was likely to be promoted in line with his peers. She sets out at paragraph 2.36 that even had he been prevented from parachuting, but had remained medically fit for deployment (P2) he would have been retained in the Royal Engineers had he wished to be and his career progression would have been the same.
120. In summary she concludes that Mr Murphy was likely to have been promoted to a rank ceiling of Staff Sergeant over a 24 year career. She sets out the likely career progression table at paragraph 2.41 of her report.
121. When she gave her evidence Miss Ahern indicated that in 2008 the Army introduced a "versatile engagement" other than the 22 year "open engagement" so that soldiers would be eligible to serve 24 rather than 22 years. That system was opened up to soldiers in the Royal Engineers in 2015 and anybody who had achieved a certain rank would have been offered a further 2 years' service. In other words the Claimant could have served 24 years in the Army having agreed to transfer to versatile engagement.
122. She concludes that had he remained P2 (MFD) in the absence of the index accident, Mr Murphy was committed to serve for at least 8 years and 5 months (to September 2014). Soldiers with 8 years service have a 54% statistical chance of remaining to their end of engagement date. At paragraph 8.8 she sets out why she thinks that in fact this Claimant would have had a greater chance of remaining. Those features include the fact that he enlisted under the age of 18, was unlikely to have been involuntarily discharged or to have been selected for redundancy, he had family support, there were financial incentives, he enjoyed the Army and his elite status, he was looking forward to promotion and he came from a services family.
123. He was statistically likely to have reached the rank of Staff Sergeant had he remained to his EED. He was unlikely to be commissioned.
124. With this career pattern he would be eligible to receive recruitment and retention pay, operational allowance, longer separation allowance, unpleasant living allowance and other routine benefits. He would also have been eligible for enhanced learning credits, a commitment bonus and subsidised rail fares.
125. Miss Ahern answered some questions on 13^th March 2015 which are at TB4/1518. The joint statement is at TB4/1581. In that document Miss Ahern remains of the view set out in her report. She cited the defence statistics (DS Army) in support of her figure of a 54% chance of a soldier in the Claimant's position generally remaining to the 22 year point (or 24). She confirms that she considers that the Claimant's prospects were greater. The experts agree that before the injury the Claimant was a well-regarded, intelligent and conscientious sapper who had been consistently placed in the middle third of his peers with developing leadership potential. They agreed that over a full career his ceiling would have been Staff Sergeant and over a 12 year career it would have been corporal. There is disagreement between Miss Ahern and Mr Cameron (for the Defendant) about promotion dates and the prospects of remaining in the Army until the end of engagement date.
126. When she gave her evidence Miss Ahern confirmed that at the time of his medical downgrade, the Claimant would have lost his parachute pay immediately. Essentially with regard to the percentage chance (of the Claimant remaining in the Army) Miss Ahern said she had taken all the factors into account in calculating the average and she reaches her percentage figure because she feels that it is wrong to ignore the 12 months' notice period although she accepts it is not a hard and fast rule. Those who do not complete the 12 months' notice are usually those who have a really good job to go to already which is sufficiently well-paid to cause them to abandon their benefits. They have to show evidence that they have such a job to qualify for the early release scheme. Her experience is that fewer than 5% of soldiers (not officers) would not stay for the notice period. She can see no reason why the Claimant would not have been promoted in line with the average. Miss Ahern provides important clarification about the statistical tables in her letter (TB4/1524) and for this reason says that her figure of 54% is correct.
127. On behalf of the Defendant Mr Cameron's report (from HJS Personnel Services) is at TB4/1526. Having set out the background he postulates different scenarios beginning at paragraph 21, identifying that the Claimant would have had a chance of between 63% and 74% of completing 12 years' service and would have been entitled to a resettlement allowance. The second scenario gives the Claimant a percentage chance between 48% and 56% of serving to 16 years and a third scenario of 20 years of which there would have been a statistical chance of between 45% and 53%. In Mr Cameron's view that chance of completing 22 years' service would have been between 41% and 48%.
128. Based on the statistics therefore, Mr Cameron feels (see paragraph 140) that was a realistic prospect of the Claimant staying in the Army for 20 years and reaching the rank of staff Sergeant. He does not think he would have stayed in the Army for the full 22 (24) years. In the joint statement he sets out his view. When Mr Cameron gave his evidence he agreed that the Claimant would have been offered and probably would have accepted the opportunity to remain in the Army for the 24 year (versatile engagement) period. He refers to the statistical information which he says suggests that the Claimant had a 48% chance of remaining in the Army for 24 years. Of course, as he quite properly said, the Claimant is not a statistic and one has to consider the individual. He agreed that his percentage figure depended upon early release (from the notice period) whereas Miss Ahern's was based on the 12 month notice period being completed. He agreed that a soldier leaving early would have to give up financial benefits. He was not in a position to say what percentage does leave early. He said that he could not comment on Miss Ahern's 5% figure. He had no experience which would enable him to agree or disagree with that figure. He did point out that in fact the Claimant went into the sort of job where early release would have been allowed. Additionally, of course the Claimant had an electrician qualification which not all soldiers (for example infantrymen) would have. He agreed that soldiers who join before the age of 18 tend to stay longer and the Claimant came from a forces family. He accepted Miss Ahern's reasoning and process given that the Claimant identifies himself as a soldier and a parachutist. He did wonder whether there were some familial pressures.
129. Mr Cameron and Mr Ahern differ as to the promotion dates although not by very much. Miss Ahern feels that the Claimant would have reached the rank of Sergeant in about 2018 while Mr Cameron feels it would have been about 2020. Mr Cameron feels that it is difficult to judge how a soldier will fare on promotion by the way he performs as a sapper. In other words there is no evidence of any assessment of him as a junior non-commissioned officer. He accepts the progression to lance corporal and corporal, but felt that the rate of promotion slows as the "pyramid steepens". It is for that reason that he put in the extra two years over and above the average of all in the regiment. He agreed it was quite an achievement for the Claimant to be in the middle third in his first year in the unit and to have risen by the second appraisal to the top of the middle third.
130. Against the background of this evidence and with so much in dispute between the medical experts it is apparent that each party's arguments and valuation of this claim are very far apart. Considering the skeleton arguments it seems that the first issue is whether or not the Claimant had a pre-existing pain syndrome. On behalf of the Defendant, based on Mr Dolin's evidence in respect of the knee pain it is suggested that he did. Dr Munglani disagrees.
131. It is common ground that the Claimant sustained physical injuries in the accident in 2010. With the exception of Professor Maden who is unwilling to give the diagnosis, the experts agree that the Claimant is suffering from chronic widespread pain which will be permanent. The issue, however, is causation. Dr Dolin believes that there was a recovery within about three months from the date of the accident and that the subsequent CWP is of spontaneous onset. Dr Munglani feels that the CWP is directly attributable to the index accident. The psychiatrists disagree as to diagnosis, Dr Spencer identifies a major depressive disorder and Professor Maden diagnoses an adjustment disorder. Professor Maden considers that this is due to the loss of the Claimant's Army career whereas Dr Spencer attributes it to the accident. If the accident caused the loss of the Army career then clearly causation would be made out.
132. The Defendant essentially puts the Claimant to proof of causation. I remind myself of course that the burden is on the Claimant. The Defendant relies upon two potential dates of recovery: either in early 2011; or by February 2012. The Defendant additionally says that the index accident cannot be considered to be causative of the CWP anymore than the accidents in March (fall down the stairs) and September (knocked off bicycle) 2011.
133. Professor Maden has called the Claimant's reliability as an informant into question. His concerns are such that he does not even make the diagnosis of CWP.
134. The Defendant also relies upon "other life events" in the lead up to the decline in the Claimant's abilities in the latter part of 2012. These include: not being permitted to parachute following discovery of the non-accident related pathology in his thoracic spine; his unsuccessful application to transfer to the intelligence corps; and the loss of his Army career.
135. Professor Maden and Dr Spencer disagree about the date of onset of mental health issues. Professor Maden considers that mental health problems developed at the end of 2012. Professor Maden also considers that excessive alcohol consumption has played a role in the Claimant's psychiatric condition. Professor Maden considers that the prognosis is optimistic whereas Dr Spencer feels that there will be some improvement, but that the Claimant will be liable to relapses.
136. The Defendant argues that there is no modification of the "but for" test of causation in the circumstances of the case. There is no suggestion of a number of cumulative causes and no question of "material contribution" approach. In essence the Defendant says that the Claimant has not established causation here. It is submitted on behalf of the Defendant that the literature goes no further than to observe "associations" between recent experience of trauma and CWP and that there are correlations between the two only. The Defendant relies on the literature cited by Dr Dolin.
137. The Defendant refers me to the case of Davis and Doherty v Balfour Kilpatrick Limited [2002] EWCA Civ 736 concerned allegations of exposure to levels of electromagnetic constellation sufficient to be a threat to health in which the Claimants contended that they had suffered from radiation sickness. Having considered the expert evidence the judge at first instance reached the conclusion that there was no reliable evidence of excessive exposure. He rejected the Claimant's argument that the presence of symptoms of radiation sickness made the fact of exposure to such excessive levels more likely. The appeal was permitted on the basis of an argument that the judge was obliged to make a positive finding that the cause of the Claimants' symptoms. That submission was rejected by the Court of Appeal. In essence the Claimants had failed to prove their case.
138. It does not seem to me that that case is as squarely on all fours with this one as the Defendant submits. The argument here is about the causation of CWP where there was a trauma for which liability has been established in circumstances in which (with the exception of Professor Maden) the experts consider that the Claimant suffered minor physical injuries and has since developed CWP and some psychiatric problems.
139. Of course, the Defendant in reliance on Professor Maden's opinion as to date of onset of symptoms also disputes causation in respect of the psychiatric illness.
140. The Defendant argues that even if Dr Munglani is right there are a multitude of factors here which might have triggered CWP. On Dr Dolin's view the most likely cause is spontaneous onset.
141. The Defendant sets out the two arguments for cessation of symptoms either in early 2011 or early 2012.
142. An issue is raised about what caused the Claimant to lose his status as a parachutist. The decision to stop him jumping was made on the basis of the MRI scan findings in May 2011. Those findings were constitutional and not caused by the accident. The accident merely prompted an investigation which revealed the pre-existing degeneration. Thus the Defendant says there was no injury which caused the loss of the parachute status and the Defendant is only liable in respect of injuries caused by the accident. In any event the Defendant does not accept that the accident prompted the MRI scan because it was ordered following the report of having fallen downstairs and of having suffered some incontinence symptoms. The Defendant relies on the reference to cauda equina. The Defendant argues that the MRI would have happened in the wake of the fall downstairs in any event.
143. On behalf of the Claimant it is submitted that his evidence was honest and straightforward and that Professor Maden's doubts about his credibility are based on nothing.
144. The Claimant argues that the knee pain in 2009 is irrelevant and does not show any pre-existing pain disorder or syndrome. He suffered minor injuries in the accident which, but for the psychiatric symptoms/CWP would have resolved over a short period of time. The orthopaedic evidence suggests somewhere between 2 and 3 months. The Claimant relies on Dr Munglani's evidence which shows a gradual transition from the situation in which his musculoskeletal problems were being maintained by the developing psychiatric/CWP symptoms for a period of 12 to 18 months but that thereafter it is the psychiatric/CWP problems which come to the fore.
145. The Claimant invites me to ignore the evidence of Dr Dolin in light of the change of date. He submits that in any event his analysis is artificial. The Claimant argues that either he was already developing CWP within the three month period or the recovery may have been up and down, but was not complete within that period of time.
146. Similarly, in respect of the alleged cessation of symptoms in 2012, it is right that the Claimant was upgraded to P2 status, but this may reflect the undulating nature of the condition and the Claimant and the Army's determination that he should become deployable. He was never in fact returned to his original duties. In any event, says the Claimant, given that he had symptoms throughout 2011 which would not, on the orthopaedic evidence, have been related to the physical injuries, they must have been due to something else and if it was CWP it would not have spontaneously resolved in February 2012. The alternative would be that it resolved within the period of about eight months and then spontaneously recurred in a non-trauma related way.
147. In terms of the legal principles I have been referred to several authorities on various points. Some of the principles are not in dispute or at least were not challenged. First of all I accept that the Defendant is liable to compensate the Claimant for any psychological/psychiatric consequences resulting from the physical injuries he sustained.
148. Secondly, I accept the Defendant's submission here that there is no applicable modification to the "but for" test of causation. The Defendant cited several cases on causation which are in the bundle and which I have read. I do not consider that any of them are directly relevant here. The causation issue is simpler in this case. Essentially, if the Claimant is suffering from CWP and additional mental illness, has he proved on a balance of probabilities that but for the accident he would not be suffering from those conditions? That is for me to decide on the evidence I have heard.
149. I am referred to some extracts from Clerk and Lindsell on Torts (21^st ed.) dealing with causation and remoteness. They are a useful reminder that the function of the test of remoteness is to set an outer limit to the damage for which the Defendant will be held responsible. As is set out "in a system of fault liability, holding a person liable for the unpredictable or freakish consequences of his negligence may seem unfair because of a sense of disproportion between the fault and the damage". I am reminded that remoteness is rarely relevant in actions for breach of statutory duty (see Clerk and Lindsell at 2-138) because as part of establishing the Defendant's liability the Claimant must show that the damage he suffered falls within the ambit of the statute namely that it was the type that the statute was intended to prevent and that the Claimant belonged to the category of persons that the statute was intended to protect.
150. I accept this argument of course. However, whilst the Particulars of Claim pleads breaches of statutory duty, the Defendant only admitted liability for breach of its duty of care.
151. The Claimant says there is no evidence to suggest that he would have had an MRI scan but for the accident. The Defendant cannot say that the MRI alone would have grounded the Claimant had he been fully active and jumping. The decision was a precautionary one in light of the findings.
152. Finally in submissions, the Defendant says that by reference to paragraph 48 of Dr Munglani's report at TB1/205 had the Claimant continued to parachute with the degenerative change to his spine unknown, there was potential for a disc prolapse with devastating consequences.
153. Based on the evidence I have heard and read I have reached various findings. Firstly, I accept the evidence of the Claimant and his witnesses. I considered that they were credible and straightforward. The Claimant is and has been (perhaps more so in the past) excessively focused on his symptoms. That colours his use of language and his approach to situations. Professor Maden is alone in questioning the Claimant's credibility. I found that his comments in his written reports did not sit well with his approach in his oral evidence. He went to some length in writing to point out the areas where he felt the Claimant was unreliable and inconsistent. He set out that in the circumstances he did not feel able to make the diagnosis of CWP because of those inconsistencies. He felt that the surveillance evidence showed evidence that the Claimant was not troubled by significant fatigue, he considered that there was no disability shown in the footage. Nonetheless in his oral evidence he said that this commentary was not an attack on the Claimant, it was "just something he was bringing to the attention of the court".
154. I should say having seen the Claimant give his evidence that I do not accept Professor Maden's scepticism about his veracity. If a man and his wife give different accounts of the state of their marriage I do not think that that establishes that one account or the other is unreliable. If a man gives different accounts of his alcohol consumption at various periods of time whilst acknowledging that that such consumption is excessive, again, I do not think that establishes a lack of veracity. None of the other experts consider that the surveillance DVD showed the Claimant doing anything that he said that he could not do.
155. As I find, and as is clearly the consensus view of everybody except for Professor Maden, the Claimant suffers from CWP. By that very diagnosis, the Claimant is somebody who is focused on symptoms. He is focused on his disability. He will overemphasise his problems. His position and attitude is entrenched. If there is any overstatement of difficulties or problems it is by reason of the Claimant's ongoing symptomatology and not by reason of any lack of veracity.
156. The Claimant has made strenuous attempts to regain fitness whilst in the Army, to become deployable and as a civilian to obtain and maintain well-paid employment. There is nothing to suggest that his motivation is suspect.
157. I described above the manner in which the Claimant gave his evidence. It seems to me that he can properly be described as having a somewhat flat affect save where he touches on matters that upset him. This is consistent with the accounts given by the various experts. The Claimant gave the impression of a man who was low in mood and unhappy when giving his evidence. Even allowing for his military demeanour and the circumstances of giving evidence in court, it seemed to me that his unhappiness and frustration was almost palpable.
158. I accept Dr Spencer's diagnosis of mixed anxiety and a depressive episode. I preferred his evidence based on the medical records in particular. Professor Maden's view that there was no onset of psychiatric symptoms until December 2012 is, as I find, on a balance of probabilities, less likely to be accurate than the account of Dr Spencer. First of all, by the time one reaches the diagnosis there must have been ongoing symptoms, as I find. Secondly, Professor Maden considered the records, but did not consider the details given in the Claimant's statement and his account. Thirdly, it seems to me that Professor Maden did not take adequate account of those records which show the beginnings of low mood from an early stage. Professor Maden does not refer to the Claimant's suicide attempts when considering the date of onset of mental health difficulties. The first suicide attempt was in early 2011. The second was in the autumn of 2012. The notes indicate weight loss, anxiety, low mood and so on. It seems to me that these show that the Claimant was suffering from mental health difficulties from far earlier than Professor Maden is willing to concede. Moreover, Professor Maden does not agree with the diagnosis even when it was made in December 2012. He refers to an adjustment disorder. It is not clear why when both conditions (adjustment disorder and depression) lie on a continuum and the criterion for diagnosis of an adjustment disorder is one that would resolve (even with ongoing stressors) before the time during which the Claimant symptoms have already persisted.
159. In any event, (as set out at paragraph 6 above) the Defendant did not dispute in argument or submissions that the Claimant has CWP or that he is genuine, despite Professor Maden's opinion.
160. In the circumstances, I have reached the clear conclusion that the evidence of Dr Munglani in particular is to be preferred, namely that the Claimant suffers from CWP. Secondly that the evidence of Dr Spencer is to be preferred when one considers the records and the Claimant's own account and that he has been suffering from symptoms of mental health disturbance since early 2011 and that the appropriate diagnosis is one of a mixed anxiety and depressive disorder.
161. I reject Dr Dolin's view that the Claimant had already suffered from a pain syndrome based on the experience of knee pain in 2009. "Chronic" merely puts a time-frame on symptoms and the Claimant clearly suffered from symptoms of knee pain for sufficiently long to put him into a "chronic" category by that definition. However, it does not seem to me that there is any suggestion in the records that this was a pain syndrome. He was training very hard indeed. He developed pain which resolved with treatment. Many athletes have ongoing problems with muscular pain when training for which they will need treatment for example with physiotherapy. The fact that these persist for many months while training is ongoing does not as I find, put such a person in the category of people suffering with a "chronic pain syndrome". It seems to me that Dr Munglani's view is to be preferred here.
162. I do not find that the Claimant had any previous pain syndrome. It seems that it is acknowledged that his history when he was about 15/16 of IBS would suggest that he is somebody may have been vulnerable to the development of CWP. That does not assist the Defendant. They are liable for the consequences of an injury to a person with pre-existing vulnerabilities.
163. Similarly, I accept that there may have been some family history of psychiatric difficulty by reference to the Claimant's sister. In this respect I prefer the evidence of Dr Spencer to the effect that there was no pre-existing vulnerability primarily because it seems to me that up until the date of the index accident, there was nothing to suggest that the Claimant had any tendency to the development of mental health difficulties. He was positive and focused on his career. However, even if I am wrong about that, it seems to me, again, that if the Claimant did have such a vulnerability the Defendant would nonetheless be liable, taking their victim as they find him.
164. I accept that the mechanism of the causation of CWP has not yet been identified by medical science. However, it is undoubtedly recognised both by Dr Munglani and by Dr Dolin that there are different factors and events which can "trigger" CWP. It seems that they both agree that CWP can occur spontaneously. Dr Munglani expresses the clear view that trauma is one of the factors. He cites a specific link between the experience of physical symptoms, particularly in respect of road traffic accidents and whiplash-type injuries where someone involved in such an accident goes on to develop CWP. Recognising that there are triggers, Dr Munglani sets out that there is clear evidence to say that trauma is such a trigger and, in his experience, trauma can be a specific cause of the development of CWP. I have set out above his statistical approach to the incidence of CWP in the injured and the non-injured population and that seems to me to be logical and I accept it. There are several reported cases in which the Courts have found that CWP (or fibromyalgia) can be caused by a trauma, in particular traffic accidents where there has been a whiplash-type injury. There is a section on chronic pain in the Judicial College Guidelines for the Assessment of General Damages. There are, of course, different types of pain syndrome, but the section reflects the fact that the Courts frequently make awards in respect of the development of pain syndromes following physical trauma. I accept Dr Munglani's view that this accident could be considered akin to a whiplash-type injury with a "shock" to the spine and initial musculo-skeletal injuries which become the focus of ongoing pain symptoms and spread.
165. It seems to me that Dr Dolin's approach of identifying potential causes and then concluding that one cannot include or exclude any of them lacks logic. It may be that there are several potential causes and clearly the Claimant would have to establish on a balance of probabilities which was the trigger. I accept Dr Munglani's view in this case that the most likely cause is "staring us in the face".
166. This is not a case of post hoc ergo propter hoc. An analysis of the records as carried out by Dr Munglani clearly shows the initial injury and the fairly quick onset thereafter of the additional symptomatology and spread of symptoms. There is a clear temporal association. There is also a clear association between the initial physical injuries and the main sites of the Claimant's complaints of long-term pain.
167. Dr Dolin's opinion depends on there being a gap between the resolution of the physical symptoms and the onset of CWP. It seems to me that one could properly argue the point if the gap were large enough and clear enough. On either of the dates that he put forward or in the period of "approximately three months", I find that there was no resolution of symptoms on analysis of the records. Dr Dolin was forced to say in respect of the recovery he relied on that the Claimant was "nearly there". The records do not show any significant period of time in which the Claimant was symptom-free before the onset of CWP. On the contrary the pattern fits much more clearly with Dr Munglani's opinion that there was early onset of a pain syndrome with undulating features. There is a transition period between the maintenance of the musculoskeletal symptoms and then the cause of the symptoms being due to CWP/psychiatric issues.
168. It seems to me that Dr Dolin can properly be criticised for taking a "frame by frame" approach rather than looking at the pattern. It is unfortunate that he was forced to give his evidence on a premise which was not his actual opinion, but nonetheless the change of date from one precise date to another seems to me to demonstrate the artificiality of Dr Dolin's approach and I reject it.
169. In the circumstances I find that the Claimant developed CWP following the trauma of the index accident and that causation is established. Of course each case has to be looked at on its specific facts and the situation is not that every case of CWP can be linked to an earlier trauma. Similarly, there may be cases in which there are multiple factors and one cannot on a balance of probabilities say what the specific cause was. However, in this case I prefer and accept the evidence of Dr Munglani. His experience seems to me to be more than sufficiently persuasive to establish the causative potential of the index accident. Moreover, there is a clear and logical pattern and a tight contemporaneous link between the accident and the onset of symptoms. The accident itself can properly be considered to be akin to cases in the authorities and in the literature where there has been shown to be a causative link between the trauma and the onset of CWP.
170. On the other hand Dr Dolin's view of an almost complete recovery with a short period of time and within a matter of one or two weeks thereafter the spontaneous onset of CWP, seems to me to be significantly less likely.
171. In reaching these conclusions I particularly have borne in mind the fact that the Claimant was himself desperately keen to establish he was medically fit to return to full duties and was pushing himself to show he was capable of them. Simultaneously following an accident in which fortunately, the injuries were physically fairly minor, the Army would have been and was, as I find, also keen to reach the conclusion that the Claimant had recovered and was fit for duties.
172. The Defendant's reference to other trauma, namely the bicycle accident and falling down the stairs are, as I find, unhelpful. Firstly the reference to them undermines the argument that trauma does not cause CWP. Secondly, a proper analysis of the records shows that the Claimant's difficulties with widespread pain symptoms and features out of keeping with the nature of the original accident had already been established before either of these incidents. In any event I accept evidence of the Claimant and of Dr Munglani that these incidents were much less significant.
173. It seems to me that both Dr Dolin and Professor Maden have been excessively selective in considering the entries in the medical records in the context of considering the development of a chronic pain disorder and a mental illness.
174. The Defendant's secondary submission that the Claimant's symptoms resolved early 2012 is also not an argument which stands up to a great deal of scrutiny. First of all it ignores the Claimant's own evidence which as I have said, I accept. His account of his difficulties, again in the context of man who was desperately keen to be considered medically fit shows that there was no such complete recovery. Moreover it ignores the significant amelioration produced by the facet joint injections which wore off. Further, it requires a finding of the maintenance of symptoms which should have recovered within a period of three months (on the Defendant's own evidence) by some unidentified syndrome or mechanism such as CWP which then resolved before the subsequent spontaneous onset of CWP and an adjustment disorder unrelated to the accident. In his closing submissions counsel for the Defendant said "the best reading of the evidence is that the Claimant remained fit until late July 2012 when, whilst involved in work for the Olympics, he received notification that his application for the Intelligence Corps had been turned down". Any analysis of the records up until then shows that the Claimant was far from fit and well while throughout that period. As referred to earlier, in Dr Dolin's original report, he said that the widespread pain started at the end of January 2011 and continued to this day. He does not refer to any break or cessation in 2012.
175. I accepted the Defendant's point that the Claimant was prevented from parachute jumping by reason of the non-accident related degenerative change in its thoracic spine. However, it is absolutely clear in this case that there would have been no MRI of the Claimant's thoracic spine had he not had the index accident. I reject the Defendant's argument that the MRI was solely performed to exclude cauda equina. It was an MRI of his whole spine. The need for an MRI was the reason for the Claimant's return to the UK. But for the accident the Claimant would not have had the MRI scan. It was the findings of the MRI scan which led to him being prevented from parachute jumping. The evidence I have heard and which I accept is that the findings on the MRI scan were largely normal. About 50% of men of the Claimant's age doing the activities that he was doing at the time would have had a similar result. The Army do not routinely MRI paratroopers in order to ascertain whether or not they can continue jumping. The conclusion must be that there are many parachute jumpers who have similar degenerative change and who carry on jumping, presumably for the most part, without adverse outcome.
176. It does not seem to me that medical investigations are anything other than a foreseeable consequence of an injury of this kind caused by the Defendant's breach of duty. Similarly, it does not seem to me that the consequence of those investigations would be outside the scope of liability either. I find that the inability to parachute and the loss of parachute pay claimed is of the same nature and type of damage as the other heads of loss and damage. It is not an "unpredictable or freakish consequence". In the circumstances applying what are essentially basic principles I have reached the conclusion that the Defendants are liable for the fact that the Claimant was prevented from parachuting. I heard no evidence from the Defendant about any policy for dealing with paratroopers in this sort of situation.
177. I did not see the correspondence in which the Defendant admitted liability because it was not at Court. I have set out above that the admission was of breach of the duty of care. Breach of statutory duty does not seem to have been mentioned. Of course it is very unlikely that either party gave any conscious thought to the argument raised before me about the concept of remoteness in relation to breach of statutory duty. That is not surprising. It seems to me therefore that either I could decide that if pressed the Defendant would have admitted liability for breach of statutory duty as well or would have required the Claimant to prove it at a trial. The costs of such a hearing would clearly be disproportionate when compared to the loss of the parachute pay. That would be especially so when measured against the prospects of a successful defence in circumstances where breach of the duty of care has been admitted and the statutory breaches alleged are in such general terms (seeTB1/5).
178. Further and in any event even if I am wrong on this issue, the loss to the Claimant is limited to loss of parachute pay. I accept the submission and I find that had the Claimant not suffered this accident, not developed the symptoms and been otherwise as fit as he was before the accident, even had the findings on MRI be discovered at some point, he would have been medically fully deployable for all duties except parachuting and his career would not have been adversely affected in any respect.
179. I do not consider that the date of the accident is material. There is no dispute about its circumstances. It probably occurred a few days before the pleaded date.
180. There is not a great deal between the employment experts. On the basis of Miss Ahern's evidence about the small (5%) percentage of soldiers who seek early release within the 12 month notice period, I conclude that her percentage figure of 54% is the accurate one. In the event I do not think that Mr Cameron challenged that particularly strongly. I have to factor in, in any event, the individual circumstances of the Claimant. I accept the features of the Claimant which Miss Ahern refers to and which would indicate that he was more likely than the average to stay the full term in the Army. Again, Mr Cameron does not consider that such a view would be unreasonable. I therefore find that the Claimant had at least a 54% prospect of remaining in the Army for 24 years in total (until April 2030) and therefore on the balance of probability I find that he would have done so.
181. Similarly, whilst I accept Mr Cameron's very measured view about lack of experience/evidence of the Claimant's performance as a non-commissioned officer there is nothing in the evidence which suggests that the Claimant would not have performed at least as well as an average soldier and in the circumstances I find that he would have reached the various promotion stages as set out by Miss Ahern.
182. I am satisfied, therefore, that but for the accident, the Claimant would have remained in the Army for a total period of 24 years. The accident caused the physical injuries referred to the orthopaedic reports and went on to cause the Claimant to develop CWP and a mixed depressive and anxiety disorder.
183. In so far as any part of the Claimant's ongoing symptomatology whether in terms of psychiatric problems or the maintenance of the CWP are attributable to his harmful use of alcohol or to his frustration at the loss of his Army career, I find that those symptoms are attributable to the accident. For the reasons identified in the evidence which I have cited I am satisfied that such harmful use of alcohol was directly attributable to the symptoms caused by the accident in that the Claimant resorted to excessive drinking in order to "top up" his medication. Similarly, since I find that his Army career was ended by reason of the consequences of this accident, any symptoms caused by that are also attributable to the accident and the Claimant falls to be compensated for the same.
184. I was addressed on some specific matters in relation to quantum here. I was specifically invited to consider the matter in broad terms on the premise that the parties having considered my findings would probably be able to agree precise quantum figures. I am grateful to both Counsel for that indication. As I have set out above, the question of any pension loss is "put over".
185. In dealing with the issues of quantum, therefore, I make the following findings.
186. In terms of general damages on the basis of my findings and by reference to the Judicial College Guidelines to which I have been referred and taking into account both the initial physical symptoms, the chronic pain syndrome and the overlapping psychiatric difficulties, I have reached a conclusion that the appropriate award general damages for pain, suffering and loss of amenity is £30,000. Although there are two separate diagnoses here, there is a considerable degree of overlap in terms of the resulting pain, suffering and loss of amenity. The overall consequence to the Claimant fall toward the upper end of the lower bracket of "Other pain disorders" with minor injuries which would have resolved within three months.
187. The Claimant claims damages for loss of congenial employment and puts forward a figure of £15,000 in this respect. Various previous awards were cited in closing submissions. As I have found, he would have had a full career in the Army. He was from a military family and defined himself by reference to his role. I do not accept the Defendant's argument that the Claimant had become frustrated or was dissatisfied with his career for reasons unrelated to the accident. I accept the evidence of the Claimant and his witnesses on this issue. I accept that the figure should be greater than would be appropriate for some jobs. The Claimant has suffered a loss of his chosen lifestyle and the impact of the loss of status and personal identity is significant, however, I consider that the Claimant's figure is too high. I award £10,000 for loss of congenial employment. There are pros and cons to Army life which have to be taken into account. I have also considered the award made in Hanks v Ministry of Defence [2007] EWHC 966 (QB).
188. On the basis of the Claimant's evidence I accept the need for the massage and the figure of £700.
189. As to the care claim, I accept the Claimant's evidence and figures and the award is therefore £3,253.
190. The Claimant claims £7,590 past loss of earnings. But for the accident the Claimant calculates his Army pay would have been £47,992.81. In addition he would have received £4,084.08 parachute pay. In his civilian employment he has earned more than that, a total of £63,948.47. However, the Claimant claims that from that sum should be deducted commuting costs, work clothing expenses and a daily food allowance which produces a net loss overall in the sum identified.
191. On behalf of the Defendant it is suggested that the Claimant has failed to mitigate his loss by choosing to live further away from his employment or not finding a job closer to where he lives. In addition they say that the purchase of a travel card entitles him to travel for purposes other than work so that a degree of betterment. Nonetheless an allowance is made of £250 per month. The Defendant suggests that the Claimant would in any event have had to purchase civilian clothing and so says that the claim is inflated and allows £500 in respect of clothing. This is for the whole period. The Defendant also suggests that there is an additional cost based only on the additional cost of the family grocery bill by reason of the Claimant not being in the Army and so they put forward £30 per week.
192. I agree that the Claimant's figures in respect of work clothing expenses and food costs are probably overstated. I do not accept that the commuting costs are inappropriate in circumstances where living in London would be a great deal more expensive in any event and/or one would not be able to earn the same amount of money outside of London. I heard no evidence on this, but it seems to me I can properly take judicial notice of those details. Considering that the Claimant would have to buy civilian clothes even if he were in the Army and that there should be some discount from the figure claimed to reflect the fact that the Claimant now represents an increased cost on the overall grocery bill, it seems to me that an appropriate figure the clothing deduction would be £700 and for the food an appropriate figure would be based on £5 per day which would be £3,805.
193. I reject the Defendant's argument as to betterment in respect of the travel card. He has to commute and the purchase of the card is more economical. It does not seem to me that the principle would apply here in the circumstances. Moreover, I heard no evidence to suggest the Claimant does use the card for other purposes.
194. In respect of the potential Army earnings the Defendant refers to a discount to reflect the "X factor" component recognising the disadvantage of conditions of service experienced by members of the Armed Forces compared with the civilian sector. This is referred to in the employment reports in both paragraph 92 of Mr Cameron's report and the percentage of 14.5% is included in paragraph 5.2 of Miss Ahern's report (TB4/1489). The reduction of 14.5% from the Claimant's calculation produces a figure of £40,553.92 plus parachute pay giving a total of £44,638.
195. Thus the Defendant argues that since the deductions from the civilian earnings therefore total £14,916.50, giving the Claimant an earnings figure for the past of £48,991.97 which is greater than the amount he would have earned in the Army, there is no past loss.
196. Before addressing this argument and identifying the Claimant's past and future losses, I need to deal with some of the evidence in respect of the Claimant's past and future earnings had he remained in the Army. He would have been promoted as Miss Ahern identifies. I accept the conclusions of Miss Ahern in relation to the additional payments which the Claimant would have received. They were not the subject of any real challenge. He would have received parachute pay. Miss Ahern says at paragraph 3.3 that the Claimant would probably have spent 6 years out of every 10 in a RRP(Para) qualifying post. The figure for parachute pay needs to be calculated on this basis. He would have received the additional pay and benefits referred to at paragraph 8.12 (he would probably have done one more tour of Afghanistan). He would not have received the items at paragraphs 8.13 and 8.14.
197. Considering future losses and applying the same figures in respect of the past losses the Defendant makes the same submission: the Claimant's current take home pay is £23,427.80. His Army pay would have been £25,110.30, but less the "X factor" figure of 14.5% on his basic pay gives a figure of £21,753.28 and so again there is no loss.
198. The Defendant refers me to the case of Hanks (cited above). In that case no award was made for the loss of additional bonuses/payments. At paragraph 80 the learned judge set out that he had no evidence on the point. That is not the case here. He also said that those who "go and serve in areas of substantial danger are at greater risk of having their service careers cut short through death or injury". At paragraph he said that he did not consider an award should be made for loss of the payment which would have been made for the fact of being longer at sea.
199. On this basis the Defendant urges me to discount the Claimant's past and potential earnings by the 14.5% "X" factor. The Defendant suggests this is "uncontroversial". I do not agree. Firstly the decision in Hanks only refers to additional payments. Secondly, whilst it is a decision of the High Court and I have given it proper consideration, it is a first instance decision. As I have found in this case, the Claimant was committed to and would have stayed in the Army. The Army way of life was what he wanted. He would have fulfilled that ambition but for this accident. He would have done his duty and he would have received the income and the payments/bonuses referred to. As in any such claim, in assess the financial loss, I have to compare the hypothetical uninjured Claimant with the injured Claimant. The hypothetical uninjured Claimant would willingly have endured the less attractive aspects of Army life and he would have been paid accordingly. It does not seem to me to be logical to discount any of those payments. If a claimant were paid a greater hourly rate to work unsocial hours, I do not believe it would be suggested that they should not be compensated at that rate for the hours they would have worked, if they could no longer do that work by reason of a defendant's negligence.
200. I reject that argument and the multiplicands for loss (past and future) should be calculated on the full pay and additional sums the Claimant would have received.
201. Although the evidence I heard/read was very limited on the point, it seems to me and I find on a balance of probability, that on leaving the Army, the Claimant would have found civilian employment and would have worked to a conventional retirement age of 65. I find that he annual income from 2030 to retirement age would have been the same as it will be now. Mr Cameron in his report refers to the factors which have to be balanced when looking at this issue. The Claimant as a former soldier with lengthy service would have commanded a reasonable income. The Claimant now when he reaches that age will have some restrictions on his abilities but he will have had many years in which to build his civilian career.
202. In respect of the calculation of future loss of earnings, the Claimant puts forward a claim on two bases. The first is, given his ongoing CWP and mental health difficulties, he qualifies as disabled for the purposes of the Equality Act 2010 (previously Disability Discrimination Act 1995) and applying the Ogden tables, therefore his future earnings multiplier post-accident is significantly reduced since his future loss of earnings should be calculated by reference to the multiplier as a disabled person compared to that as an able-bodied person. Alternatively, the Claimant claims a "Blamire" type of award based on the current shortfall in take-home pay and the time he would have served in the Army. The Claimant puts forward a figure in the sum of £80,000.
203. The Defendant argues that it is incorrect to categorise the Claimant as disabled because his limitations are minor. Even if the future earnings multiplier on a disabled basis is appropriate then there should be some considerable adjustment towards the non-disabled multiplier. The Defendant argues that this should be substantial and refers to some authorities. The Defendant disputes the appropriateness of a Blamire-type award.
204. I have read Herring v Ministry of Defence [2004] 1 All ER 44. I have set out above my findings as to the uninjured Claimant's likely hypothetical career path. He has obtained and maintained employment to date and subject to certain restrictions he will endeavour, as I find to pursue his new career until retirement age. In light of these findings, I do not consider that a Blamire-type award is appropriate here. There are not so many imponderables that such an approach is the only sensible option.
205. I first have to decide whether or not the Claimant is "disabled". The Equality Act provides that a person has a disability if he (a) has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. "Substantial" means more than minor or trivial.
206. In this case I find that most of the restrictions the Claimant has affect his home and personal life, for example, playing with his children and socialising. Some clearly do, however, impact on his work. He was not able to continue in his first two jobs because they were too hectic and/or stressful. He has some physical limitations in terms of heavy lifting etc.
207. His disability is modest only, therefore. As he has learned to deal with his condition by not pushing himself too hard, the impact of his disability has lessened to an extent. He may improve somewhat in terms of psychiatric symptoms (which will impact favourably on the CWP) when the litigation ends and with some CBT/pain programme. I have been referred to previous decisions on this issue of "disability". In the circumstances here and in particular given the definition of "substantial", I do find that he is disabled.
208. The Claimant in his Schedule of Loss sets out the multipliers for future loss of earnings to reflect the disability for the period of time he would have continued in the Army. I am not sure why the claim is advanced on that basis. The evidence is that the Claimant's CWP will endure. Even if there is no quantifiable loss in annual income, the premise of the disabled multiplier is that a claimant will be out of work more often than an able-bodied person. The reduction factor for a non-disabled man of the Claimant's age and education in employment is 0.89 and for a disabled man is 0.42. That is less than half, suggesting that the Claimant would only be in work half of the time. Even over 15 years the loss on that basis is calculated at £164,310.
209. In the context of this case and the limited extent of the Claimant's disability such a figure would be disproportionately high. The Claimant is likely as I find given his determination and given that he has been in work since leaving the Army to be in employment for far more of his working life than this multiplier reflects. On a balance of probabilities on the evidence I think he is unlikely to be out of work for more than a few relatively short periods of time.
210. I have considered some of the previous decisions relating to adjustments to the reduction factor to reflect individual circumstances. Of course the Court must approach the assessment in each case on its specific facts. I agree with the Defendant that any adjustment in this case would have to be substantial. The reality as I find is that this Claimant's reduction factor would have to be quite close to the non-disabled multiplier.
211. In the circumstances I have concluded that in this case even though I find that the Claimant is disabled, a sufficient adjustment to the disable multiplier is an too contrived an exercise. The reality here is that the Claimant's particular circumstances and the particular factual matrix of this case are not well-suited to the use of the Ogden Tables. I have found the case of Billett v Ministry of Defence [2015] EWCA Civ 773 to be the most useful guide to me here. As in that case, although I have found that the Claimant is disabled, use of the Tables without significant adjustment produces an unrealistic figure for the Claimant. He is in work and has been since he left the Army. His employment is secure. He is handicapped on the labour market, but that handicap is limited. He will be more limited in his choice of employment, but has already found an employment and an employer where he can and does earn well. The judge at first instance in Billett adjusted the reduction factor to 0.73. The Court of Appeal considered that was too low. I consider that Mr Murphy's case is nearly on all fours with Billett. As the Court of Appeal said in Billett determining an appropriate adjustment is a matter of broad judgment and "that exercise is no more scientific than the broad brush judgment which the court makes when carrying out a Smith v Manchester assessment.
212. I have reached the conclusion that a Smith v Manchester award here would fit the facts much better. On analysis as I find, this is a classic Smith v Manchester situation and I prefer that approach. On my findings I take the view that an appropriate award would be in the region of two years' loss of earnings and I make an award under this head of £50,000.
213. That award is on top of the multiplier/multiplicand based award for loss of earnings based on what the Claimant would have earned in the Army compared to what he will earn during period to when he would have left the Army in 2030 which needs to be calculated.
214. In respect of future treatment, having seen the Claimant give evidence and having taken into account the fact that he has not sought treatment so far, I have reached the conclusion that he is very unlikely to undergo all of the treatment claimed. In light of the thrust of the expert evidence I make an allowance for the cost of CBT in the sum of £2,500.
215. In respect of the dental treatment, I accept the Defendant's interpretation of future costs as set out in the Amended Counter-Schedule and award £828.60.
216. Interest on general damages is agreed at 4%, giving a total figure of £1,600.
217. Interest at half the special account rate from the date of the accident to the date of trial is due.
218. On the basis of these findings I hope that the parties will be able to agree the final award, filling in the gaps which I have not been able to calculate in the absence of all the necessary figures. If a further hearing is required I will give directions for that when this judgment is handed down. I ask the parties therefore either to submit an agreed Order or draft directions.