Jones v Royal Devon & Exeter NHS Foundation Trust

In the event following the death of her daughter, the Claimant did return to DV in November 2002. She was then there until the expiry of her contract in August 2004 when she says she became redundant. Under cross examination she rejected the suggestion that this redundancy was unconnected with her claimed psychiatric condition flowing from the death of Bron but was simply due to the end of the research - as in fact stated by her on her application form of July 2004 for the position with the University of West England which she took up in October 2004. She said normal practice would have been to find other work for researchers after each project had been completed. This had not been the case for her which she attributed to the amount of time she had had off work and the problems she had experienced in carrying out her work, on returning to DV after Bron’s death. The evidence shows that she had in fact had taken substantial amounts of sick leave around the time of the Inquest in March and April 2004 and on other occasions had used up her holiday entitlement. In her witness statement (of 25/05/06 )she described how the effect on her work had been profound, that she was no longer interested in writing for publications or conferences and her presentations at overseas conferences in February and May 2004 (Amsterdam/Prague respectively) had been badly performed. This is a matter to which I shall have to return on considering the overall thrust of the defendant’s submissions attacking the credibility of the Claimant’s claim to ongoing symptomology of any significance, but it is important to record at this stage that the unchallenged evidence of Meg Price was that prior to the Claimant being made redundant, DV were having to find researchers to fulfil the Claimant’s obligations which she was “emotionally and mentally unable to complete”.

It was Meg Price’s evidence which demonstrated also the sort of person the Claimant had shown herself to be at work prior to Bron’s death. She confirmed that the Claimant had had a “huge respect from her colleagues in the field”, that she had been “gaining a reputation as a thorough researcher with an ethical approach”. She describes her as being a proud advocate and a passionate defender for people’s rights and responsibilities.

University of West England: Lecturer in Ageing Studies – October 18^th 2004 - 3rd October 2005

The Claimant then took up employment for one year as a lecturer in Ageing Studies at the University of West England, at a salary of £23,000 rising to £24,300. The employment began on the 18^th of October 2004, there being a six week gap which forms part of her claim to loss of earnings following on the date of her redundancy from DV in the August. The documents shows that she was on maternity leave from the 4^th of April 2005, her son being born on the 11^th of April 2005; that following a letter of notice dated 20^th July 2005, she returned early from maternity leave on the 22^nd of August 2005 whereupon she took up her annual leave until the 26^th of September when she sent in her resignation by letter dated the 26^th of September 2005 taking effect at the beginning of the October, when she commenced on a PhD course at the University of Bristol in “Parental Perspectives in Grief and Loss following Still Birth and Neonatal Death”.

The Claimant’s case is that this employment at UWE was not a job that she had wanted, that she had been compelled to find a job for financial reasons, and that in the event she was hardly ever there during the year of her contract. I have already set out the fact of her absence continuously from April 2005 until her resignation. During the 5 month period prior to that April, her evidence was that she ended up hardly ever going into work because her heart was not in the job and that she ended up turning up for work only once a week ,saying she was working from home which wasn’t actually the case. She summarised her own assessment of her time at UWE in these words in oral evidence:

“I was made redundant from DV. At UWE nothing was the same. I never had to go into work. I never once lectured while at UWE and never ran a seminar. The person I worked with was on sabbatical. I was there for 5 months. At home I was not doing a great deal. I felt so awful I could not go into work. I returned for a month after PJ then left. Initially I was going to go back on 15/08/04. I changed this to 28/08/04. I went to UWE for financial reasons. I was officially back at work but I didn’t teach. I had annual leave 22^nd to 26/08/04 and left at expiry of my leave. I didn’t return to an active role after 4/4/04”.

She also said that the UWE offered her a PhD and a teaching qualification but in fact she turned both down as she could not cope with this. Her witness statement reads

“I found it very difficult working in a large organisation where people knew very little about me and my life in the past three years. I felt lost”.

The PhD at Bristol University

Finally to complete the employment history to date the Claimant in October 2005 began her full time PhD studies at Bristol University in ‘Parental Perspectives in Grief and Loss following Still Birth and Neonatal Death’ under the supervision of Professor Bradley. Professor Bradley was called to give evidence as to her progress which I shall explain in due course. However for present purposes it is important to record here that it is now known from the employment documents now disclosed, that the Claimant first applied for this full time PhD in January 2004 while still at DV, that in March 2004

Other significant events include:

With this background history in mind I turn to the way the Defendant has responded to the claim before looking in more detail at the Claimant’s case, including the evidence given by Dr Brown, which in part has been presented as a rejoinder to the detail of the defence case as originally pleaded in counter schedule of loss.

As opened to this court the defence case was that any contention that the Claimant is suffering from any continuing illness of any significance is misconceived.

The Defence case as opened was basically two fold as regards the principal heads of injury loss pleaded in this case .First it was said that the Claimant’s life events since her daughter’s death did not accord with her claimed psychiatric condition and in fact showed that she had been successful in rebuilding her life since. In particular it was said that (a) she had returned to work with her previous employers after 8 weeks and continued in that employment for nearly two years;(b) she had then left her previous employment and attained better paid and more congenial employment;(c) she had formed a new personal relationship with Colin Pike after breaking up with her former partner; d) she had undertaken extensive international travel as part of her former employment; e) she had given birth to and cared for a second child from her new relationship; f) she had successfully applied for and was currently engaged in full time education at doctoral level.

Secondly, any claim to past or future loss of earnings was said not to be made out as she was now pursuing her PhD and was in no different position than she would have been in had her daughter not died. She had begun this course in 2005. She was scheduled to finish it in 2008.It was pointed out that had her daughter not died, the Claimants schedule pleads she would have finished her PhD at the same time. She remains, it was said, on course to become a research fellow as she aspired to before the death of her daughter. In the meantime she has had remunerative employment.

It was prayed in aid of the rejection of any claim to loss of earnings that the Claimant had ( i) successfully returned to work with Dementia Voice; ii) successfully applied for and obtained a better paid position as a lecturer in Ageing Studies at the University of West ;(iii) undertaken extensive international travel as part of her employment involving speaking at international conferences(iv) successfully applied for and obtained a place on a PhD course; (v) gathered positive references from her employers which did not refer at all to any incapacity in undertaking employment or study at the highest level.

In opening, the Defendant based on its expert evidence of Professor Oyebode did however concede that the Claimant had suffered some psychiatric injury although only a limited one which was now basically resolved.

As I have already indicated this injury had been identified by the professor as an adjustment disorder in the form of a pathological grief reaction, pathological grief reaction being classified as an adjustment disorder. The Defendant’s case was that this was now largely resolved albeit it was conceded the Claimant might suffer from transient re-emergence of symptoms in periods such as anniversaries of births, and hence would benefit from some limited psychotherapy if she was prepared to undergo such treatment. This had been identified by Professor Oyebode in his joint statement with Dr Brown as one weekly psychotherapy session running for 40 weeks.

The Professor in his first report had dated “significant recovery” as being achieved by December 2004 when the Claimant had told him that she went away on holiday to Australia and when “on the best information given to me by the Claimant there was a significant improvement” (para 5.4.) although under cross examination he conceded that he had no note of what precisely that information had been and that all he had recorded was that set out in paragraph 3.6 of his report namely, “I understand that the Claimant went to Australia at Christmas 2004 for 6 weeks. She informed me that she felt different from then onwards”. He was unable to say precisely why he had concluded that “feeling different” was to be equated with “significant recovery”, there being no discussion about what precise symptomatic or functional recovery there had been. He said he must have asked a simple question and received a simple answer. The Claimant told the court that in fact although she had felt different on her return, this was not a feeling of being better but rather as she approached the birth of her second child she felt more anxious with an increase in the frequency of nightmares.

In his second report following the further interview with the Claimant in April 2007, he considered that there was an inconsistency between her now reported symptoms (panic, fearfulness, sadness, tearfulness, disturbed sleep, frequent nightmares, changed appetite, excessive energy alternating with lethargy, reduced libido and feelings of hopelessness) and what he considered was on the evidence her good current level of functioning. He reported a discrepancy between that which the Claimant had told him about herself at the first interview in January and that which she told now told him which included her saying she felt worse now than she did in 2002. I should recall at once the Claimant’s explanation for this apparent discrepancy being that she felt she could not open up to the Professor at the first interview because of the presence of two medical students.

His express view in the Joint Statement, maintained in oral evidence, was that the Claimant was already significantly if not fully recovered as demonstrated by her current level of functioning and that the prognosis and current long term outlook was good. At various stages in his report and the joint statement Professor Oyebode as regards that functioning laid particular emphasis on i) the Claimant’s employment history since the death of her daughter and in particular the amount of work completed by the Claimant towards her PhD and her ability to conduct lengthy research interviews and ii) her statement to him that she went to the gym 6 or 7 days week and spent on average 70 minutes exercising; He did not consider her employment capacity was limited in any way in particular because she had worked in employment for much of the time since the index event, and was now was in full time education studying for a PhD which to him was the equivalent to full time working .

Professor Oyebode further maintained his view that in interview (and indeed he considered in her evidence in court) the Claimant did not display any objective signs of any significant depressive condition such as paucity of speech, marked monotony of speech or depressive demeanour. In the Joint Statement he noted that there was no independent evidence from the general practice records or from hospital records that significant psychiatric or psychological symptoms were apparent to anybody during the material period. This was in contrast to Dr Brown’s view that there was substantiating evidence from his experience of the Claimant and the factual witness statements.

The overall view of Professor Oyebode in this context is best shown by his recorded answer in the Joint Statement at C16:

“Professor Oyebode believes that the history is inconsistent. The account of current symptoms is out-of-keeping with the level of functioning that can be inferred from social functioning. If the symptoms listed ….were sufficiently severe and pervasive to warrant a diagnostic term (he) would expect a) there would be objective clinical signs at interview b) there would be obvious limits in her ability to care for her son on a day to day basis and c)there would be an obvious and undesirable impact on academic work. It is (his) belief that the degree and extent of reported symptoms is incompatible to conduct a research interview lasting 180 minutes. It is also incompatible with attending a gym 6-7 times weekly and spending 70 minutes on each occasion exercising”

The highlighting of the expression “sufficiently severe and pervasive to warrant a diagnostic term” is that of the court since it highlights one of the core disputes between the experts who have given evidence before me.

The Professor was adamant that the Claimant had never suffered from any kind of post traumatic stress disorder because she did not fulfil the diagnostic criteria for PTSD set out in either of the standard works on this topic ( DSM 1V an American work,; ICD 10 published by the World Health Organisation).

In this regard he placed particular emphasis upon the Claimant’s own evidence (in her witness statement of the 25^th of May 2006 para. 30) that for the first six months she had not wanted to be at home and used to drive past the hospital everyday so she could see the room where Bron was born, and kept going back to the hospital during this period for appointment with the neonatologist. This he said demonstrated that she did not suffer the expected avoidance of cures or suffer the accompanying symptom expected she were suffering from PTSD. This contrasted with her statement to Dr Brown (recorded in his report at para 4.4) when she saw him in late 2006 and early 2007, that “during this period” (meaning the months immediately following Bron’s death) she “avoided Exeter like the plague”. One of the standard criteria for PTSD is symptoms experienced on exposure to relevant cues (DSM 1V- B: the traumatic event is persistently re-experienced in one or more of the following ways …..(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event”) and avoidance of such cues (DSM -1V C: persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma) as indicated by three or more of the following…. (2) efforts to avoid activities, places or people that arouse recollection of the trauma.)

Professor Oyebode in his oral evidence was particularly dismissive of Dr Brown’s explanation to the court for the apparent inconsistency, by reference to which of the two aspects of the Claimant’s psychiatric condition was uppermost at the relevant time. Dr Brown had distinguished between behaviour relevant to loss and that connected with the trauma, so that one condition took precedence over the other and vice versa. Professor Oyebode emphasised the autonomic or involuntary nature of the distressing reaction to the particular cue. ICD-10 states among other matters that “there is usually a state of autonomic hyperarousal with hypervigilance, an enhanced startle reaction, and insomnia”. It is said that Dr Brown applied these concepts of autonomic hyperarousal and hypervigilance incorrectly. Professor Oyebode equally emphasised the requirement of the need for the cue to be sufficiently specific to the circumstances of the initial traumatic event and that the avoidance of “Exeter” was too generalised to be regarded as an indicator of PTSD.

Further it was his view that there was no good evidence of other of the required criteria hyperarousal or exaggerated startle response; no history or account of feelings of detachment or foreshortened future.

Of note however is that in the Joint Statement the Professor agreed that the perceived attitude of the Defendant’s staff and the timing and process of the Inquest affected the Claimant’s reaction to her daughter’s death, and under cross examination he conceded that the Inquest and its timing probably accounted for the length of the pathological grief reaction, since an adjustment order rarely lasted more than 6 months. It was pointed out to him that in the Joint Statement when asked to say whether the Claimant suffers or has suffered from a number of listed symptoms listed at paragraph C1, not only (unlike Dr Brown) did he say “No” to “intrusive and recurrent recollections of traumatic events (the labour, neonatal period, death, period following death, and the inquest) including images, thoughts and perceptions”, he also said “No” to “guilt” and “self blame”. The Professor conceded that in fact it was not his case that guilt and self blame had played no part in the Claimant’s condition but explained he had said “No” because he had not wanted to find himself committed in the context of a long list of postulated symptoms, to a diagnosis which he did not share, namely depressive episode.

Moreover, when pressed on his opinion on PTSD and the symptoms the Claimant said she was experiencing around the time of the Inquest and more recently, he spoke of “boundary issues” and said it was a question of judgment where one put the boundary, as between genuine PTSD, in accordance with the recognised diagnostic criteria, and grief on the other. Even in the case of grief there was a boundary to be recognised between ordinary grief and pathological grief which was a recognised adjustment disorder. He for example did not accept that the Claimant’s evidence of moving house as a reaction to becoming aware of her current neighbour’s pregnancy and the impending arrival next door of a baby, was an example of “ avoidance” in the sense used in a PTSD diagnosis but rather was linked to pathological grief.

In this context he was reminded of Dr O’Keane’s second report following the telephone interview with the Claimant of 4^th September 2006. In that interview the Claimant had described how Bron’s 4^th birthday and death day had occurred in the previous month and that she had been “shocked by how vivid her memories were and described it as similar to watching a video”, and how she continued to attend a baby loss support group because of the strength of her feelings and the vividness of the memories. In her findings at paragraph 7 although Dr O’Keane maintained the opinion that from the history given, the Claimant had suffered from PTSD in a “full blown fashion” for only about four months, (‘with especially vivid memories of hands being inserted into her vagina pulling the baby out, and also of the neonatal clinic’), Dr O’Keane nonetheless was of the view on the basis of what the Claimant had described that she continued to suffer from symptoms of PTSD albeit , although ‘distressing and disabling’ ,these did not amount to a “formal diagnosis of PTSD”. The Dr O’Keane had expressed herself thus:

“on telephone interview on the 4^th September 2006 she continues to suffer from post traumatic stress disorder. As stated in the Mental Examination she continues to experience memories that are so vivid it is similar to an experience of watching a video’. She also continues to experience dreams on a regular basis directly related to her traumatising experiences. Her levels of anxiety in general have increased beyond what they were prior to the death of Bron…..to recap Ms Jones suffered from experiences consistent with a diagnosis of PTSD for approximately 4 months following the death of her daughter. She continues to have symptoms of PTSD which are distressing and disabling but which do not amount to a formal diagnosis of PTSD”.

Professor Oyebode nonetheless maintained his view that the Claimant had never had PTSD and as I understood his evidence did not regard trauma as having had any significant role to play in the Claimant’s problems.

The various contentions directed in effect to demonstrating a fundamental inconsistency between the Claimant’s life events since her daughter’s death and her now claim to a continuing injury and disability, were the subject of vigorous investigation, and in particular vigorous cross examination of the Claimant, at trial.

In closing submission the Defendant’s case hardened so that its opening case which had conceded some limited psychiatric injury had become its secondary case. Its primary case is now that having heard the evidence the court should conclude that there is now considerable doubt whether the Claimant has suffered any psychiatric injury at all from her daughter’s death (as distinct from a normal bereavement reaction); that the Claimant’s evidence to the court should give rise to the gravest concern; that her evidence was “a variety of contradiction, sophistry, obfuscation and disingenuous” depending on her required need; that she was unreliable as an accurate historian or a truthful witness; and that in the witness box she demonstrated what was termed “an emphatic unwillingness to assist the court” to reach a clear account of the true factual basis underlying her claim when matters were put to her which contradicted “either the substance or flavour of her written statements, whether on general or particularity”.

Examples of these asserted contradictions and obfuscations are given in paragraph 40 of the Defendant’s closing written submissions. I do not repeat them all here but I do have them firmly in mind. For example it is said that the Claimant was evasive when challenged that she had maintained broadly a similar level of academic out put in terms of lectures and writings after Bron’s death as before it - the Claimant in evidence distinguished between giving a lecture at an international conference which she said had not, and giving a presentation which she had, albeit she said very badly and further undoubtedly sought to play down the contribution she had made to articles and book chapters published under her name along with others, since the death of her daughter ; that she had been disingenuous when being asked to explain her statement in her application to UWE that her health was “excellent” (– at one stage she said that this was only a reference to her physical and not her mental health- ), or the positive references she had obtained – at one stage she said the referees were referring only to the “ Old Kerry”;

It is now asserted that the Claimant is a malingerer.

At the heart of these latest submissions is reliance upon the Claimant’s employment and PHD records contained in what has become known as Bundle E .There are three sets of documents of importance, namely ,1)the documentation relating to the application for MPhil/PHD course from Bristol University with the accompanying references from Dr. Hazel Moreby of February 2004 and Professor Gilliard of 9^th February 2004 ;2) the documentation relating to the application to the Economic and Social Research Council (ESRC) for the scholarship for funding the PHD ;3) the documentation relating to the Claimant’s application of the 26^th of July 2004 for employment as a lecturer in ageing studies at the University of West England, together with her covering letter of the same date and copies of the references submitted on her behalf from i) Meg Price of DV dated 9^th of September 2004 ii) from Dr Hazel Moreby of September 2004; iii) from Professor Gillard dated 6^th of September 2004,.

The Defendant seeks to use this material to demonstrate what it regards are significant facts as to i) timing ii) the functioning of the Claimant – both by reference to what she herself wrote and by reference to her referees. It is said there is an unbridgeable gap between that contained in those records and the witness statements and expert reports generated solely by or in conjunction with these proceedings (bundles C and D), and that these are a far more reliable if limited source of information about the Claimant’s life both before and after her daughter’s death. It is said for example that the Claimant’s application for PHD which involved gathering references, surrounded the time of the inquest and that this is as cogent as the Claimant’s assertion that she was re-traumatised by the inquest

I have already encapsulated the essential information to be gleaned from these records when setting out the post 2002 employment history of the Claimant, but I repeat now the key matters on timing which the defendant seeks to emphasise.

Reliance is placed on the contents of the various references which accompanied the Claimant’s applications. I have already identified who the referees were. On any view they are supportive and do not refer to any incapacity in undertaking employment or study at the highest level. In their different ways they considered that the Claimant was able to work under pressure; was well motivated; organized; self directing; (I refer for example to that from Meg Price of DV dated 9^th of September 2004 (508-509) commenting on the Claimant’s ability to” manage deadlines”; that from Dr Hazel Moreby of September 2004, commenting that she was ‘self directing; and that from Professor Gillard dated 6^th of September 2004, commenting that she was ‘well organised and enthusiastic’.) It is pointed out that the Claimant had previously lectured at UWE whilst employed at Dementia Voice (ESRC application form E 608) and hence they had personal experience of her application. Professor Jane Gillard was the Director of DV and Honorary Professor at UWE; Dr Moreby was a senior research fellow formerly of the UWE.

In this context the Defendant places much reliance on the funding application to the ESRC and that the employment application to the UWE.

At pages E595 to E597 the Claimant undoubtedly gives a description of her research topic in the field of parental bereavement in language and detail which can only be described as careful, reasoned, and intellectually rigorous.

In addition to the general point on overall ability to function, the Defendant relies upon particular passages for a more discrete purpose.

First those passages which the Defendant suggests shows the Claimant had a detailed and sophisticated knowledge of psychiatric symptomology following neo-natal dearth (as an example: E595: “traditionally the dominant model of bereavement has suggested that the grieving process involves a bereaved person passing through a number of well defined stages in the grief process that include somatic distress, anger, guilt, surrender and finally acceptance”). This is said to be relevant to the submission (see below) that armed with the knowledge of what was required for a psychiatric diagnosis deliberately and falsely spoke of matters to Dr Brown, albeit in much more simple language, so as to suggest a fulfilment of criteria for a diagnosis in support of her claim which she had previously failed to obtain from Dr O’Keane.

Secondly, passages written under the heading “ethical considerations” which are said to demonstrate that the Claimant that she was well aware of the issue of consent (E597: “ …informed consent will be necessary from all participants including consent to record interviews. However, it is particularly important in research of this kind that informed consent is regarded as a continual process throughout the research and participants are aware of their right to withdraw at any stage.”) and of the high levels of sensitivity required to deal with bereaved parents following neo-natal death. This is said to be relevant as undermining the Claimant’s explanation that she could not open up to Professor Oyebode at his first interview because of the presence of two medical students but did not feel able to raise the matter at the time.

It is said this documentation is particularly relevant in any assessment by the court of the credibility of the claim put forward by the Claimant. It is relied upon as demonstrating that the Claimant

By reference to what is revealed in Bundle E it is now suggested that the Claimant has knowingly and wilfully misled all three psychiatrists whose evidence is before the court, in two ways.

The first is said to be by omitting material facts which would have materially affected their assessment of the Claimant.

Thus it is said respect of Professor Brown who had not seen the Claimant’s employment and PhD records and to whom at (report para 5.10 and 11.) she appears to have suggested that she left UWE as she was unable to cope with the number of people, that the Claimant did not mention that she was absent for the best part of that years employment due to maternity leave or that she returned early so as to claim the remainder of her annual leave; that she did not mention that she had applied for and had obtained a place for a PhD as far back as March 2004, and that her resignation of the 26^th of September 2005 was in effect a pre-planned one, dependent only on her obtaining funding following the renewal of the PhD offer in March 1995; and further that she did not volunteer that she had made a trip to the United Arab Emirates, en route to India (in February 2004) but simply suggested that if she travelled now it would be to a remote island such as the Shetlands or Antarctica.

In respect of Re Professor Oyebode it is similarly said the Claimant did not provide an accurate picture of her level of knowledge of psychiatric diagnosis or how she came to be studying for a PhD: she did not tell him that she held an offer for a PhD before and after starting work at the UWE; but rather (D.387) informed him that she left because it was too institutional and she felt there was no purpose to work. She did not provide to him an accurate picture of her employment with DV including the amount of international travel and public speaking she was engaged in.

Secondly, it is suggested that armed with the knowledge of what was required for a psychiatric diagnosis, the Claimant deliberately and falsely spoke of matters to Dr Brown, (albeit in much more simple language than that used in her for example ESRC form where she speaks of the concept of “narcissistic injury” and injury to the ‘mental self’) so as to suggest a fulfilment of criteria for a diagnosis in support of her claim which she had previously failed to obtain from Dr O’Keane. This it is submitted that to Dr Brown for example the Claimant had spoken of “avoiding Exeter like the plague” to suggest a PTSD avoidance; and spoken of the “joy going out of things” to suggest anhedonia, and of herself as ‘the walking dead.’ to suggest detachment. The use of phrases such as “label me as nuts” and “very bats” to Dr Brown is said to be a deliberate attempt to give a false impression of the true extent of her own knowledge in matters of psychiatric diagnosis.

Before giving any conclusions on these various matters I turn again to how the Claimant has put her case.

As I have already indicated the case for the Claimant is that she is under a continuing psychiatric illness which continues to affect her, in particular her ability to work and in her recreational, social and family life. Early on in her oral evidence she described how she now has more anxious days with more crying and with nightmares nearly every night, which are very exhausting. She said she needed to be close to her son and her deceased daughter. To this end she would go to the grave, which could be for the whole day. “It is perpetually exhausting. I dread going to bed. Its a living nightmare” her most recent witness statement of 21^st June 2007 she describes hanging a candle on a tree in the graveyard (Bron’s tree) and lights it every day so that she can see the tree from the road when she drives past. She says she lights it every evening. Regarding her work, she described her PhD as theoretically full time but says she can only work on it part time. She says she is unsure whether she will ever be able to work full time again in an organisational environment. She still needs to be in a room on her own surrounded by her daughters things, with the ability to stop when she wants to.

I do not here set out the detail of that which the Claimant has set out in her several witness statements or her responses to the vigorous cross-examination to which she was properly subjected, save that she has maintained throughout that she is not the same person as before, that superficially it may appear that she has successfully rebuilt her life but the reality is very different. Thus for example she said she felt compelled to return to DV but she didn’t return in the same way, her work was affected for the worse and the international travel and conference presentations were now to be seen in the context of her suffering palpations and anxiety throughout and underperforming. They were in any event much shorter trips than those undertaken before, as shown in the Bundle E documents, which had included extended trips to Canada and New Zealand. I have already set out her account of the reality of her work pattern while at UWE up until she took maternity leave in April 2005, never to return to effective work until resigning to embark on her PhD. On matters of detail she for example in effect denied that her attending the gym as described to Professor Oyebode should be regarded as normal gym usage, describing it as a means of escaping a build up of anxiety by doing something physical. “I need to run away from my feelings. It is frightening”.

Given the concerted attack made on the Claimant’s credibility, understandable emphasis was put on her behalf in closing submission on her lay witnesses of fact, to many of whom I have already made reference and all of whom say they have known the Claimant well and in their different ways have observed her and the lifestyle she has adopted since the death of her daughter. For the most part these witnesses were not challenged by the Defendant. They do undoubtedly in my judgment paint a picture as submitted by her counsel in his closing submissions, of an intelligent woman who was once bright and personable, but who since the death has become (to quote the evidence of Kim Warren , office manager at Dementia Voice,) “shrunk both in stature and personality”. Her “bubbly friend” had been reduced to fragility. Colin Pike with whom it will be recalled the Claimant formed a new relationship in 2004 although she was known to him before, confirmed that the Claimant’s apparent mental problems, for example disturbed sleep and nightmares, continue to this day. In evidence before me Mr Pike said her “dream monsters” (where she is said to be closed in by a lot of people wanting to throw daggers at her) had become far worse in recent months. He described the Claimant as a lady who formerly was the “life and soul” and in comparing her now with the person she was before Bron’s death, said “I would say a huge part of her is missing”. He asserts the Claimant would not drive anywhere near Exeter if she could possibly avoid it and “this is still the case”.

These witnesses of fact included Professor Bradley, Professor of Sociology at Bristol University, who is one of the two professors supervising the Claimant in her PhD. She gave oral evidence. In the context of the crucial issue of the reality of the Claimant’s current capacity to work, she was an important witness.

She expressed the view that the PhD the Claimant was undertaking (‘Parental Perspectives in Grief and Loss following Still Birth and Neonatal Death’) was strongly motivated by the Claimant’s therapeutic needs, and that she doubted that the Claimant would be able to do a PhD if it were not on this particular topic. She confirmed that the Claimant was an extremely bright and able person but it was clear she was still suffering from symptoms of stress and loss which they had observed in her. Professor Bradley produced a progress monitoring form dated 31/05/07 signed by herself and the other supervising professor. This read:

“Kerry has produced a substantial methodology chapter and completed half of the field work. Her writing has improved and she has a good grasp of the literature and the ethical and practical issues involved. It is clear from this last piece of work and from supervisor sessions that Kerry’s own experience of loss and ongoing consequences of that have made the conduct of the research at times difficult and painful for her. Time commitments resulting from this have also slowed her progress”.

Professor Bradley made further observations of note. First she confirmed that although the Claimant would be given the opportunity to progress from the Mphil stage to the PhD there had been considerable difficulties arranging meetings with the Claimant and that although she was making good progress intellectually, this was not as much as she would have expected. The PhD course involved three stages. 1^st year was the review of literature; year 2 field work and year 3 write up. Professor Bradley would have expected the Claimant to have completed her field work which involved twenty 180 minute interviews with bereaved women who have suffered neonatal loss, but in fact she had only done half. The Claimant’s involvement in the litigation and suffering and distress from her loss had slowed her down.

Further Professor Bradley was asked to comment on the opinion expressed by Professor Oyebode that the Claimant’s asserted psychiatric symptoms were incompatible with the ability to conduct a research interview lasting 180 minutes and that the Claimant’s capacity to work could not be currently impaired since a full time PHD was equivalent to full time work.

On the question of the interviews, Professor Bradley reiterated her point about the therapeutic value of the current research to the Claimant and expressed doubt as to whether the Claimant could have conducted interviews on other topics other than neonatal loss to which she was so committed. What spurred the Claimant on she said was the exposing of the pain and suffering of women in the situation she too had experienced. Talking about the loss and listening to others’ stories was important, hence talking to other women had a therapeutic value for her as well as the intellectual/academic contribution to her PhD. This was the reason she was able to carry out her work. This evidence was to find a resonance with that of Dr Brown when he came to give evidence and spoke of so much of the focus of the Claimant’s life being connected with the subject of death and bereavement and how the Claimant had not returned to being the person she was but seemed to be ‘adopting strategies to deal with her trauma and sadness by moving into areas of work with other individuals who are traumatised and have suffered losses’.

On the question of whether the PhD was the equivalent to a full time job Professor Bradley strongly disagreed. It made very different demands on the person and doing a PhD was “different to almost any kind of full time job which has a 9-5 attendance”. A PhD was a demanding task intellectually but on social terms completely different: there was no routine to stick to, there was no obligation to interact with other people, and you did not have to do it full time. If you were suffering from depression you might spend 2 to 3days in bed and work when you were in a better state of mind. Professor Bradley said she had supervised several people who suffered from depression. Some had and some had not been able to complete their PhD.

This evidence again tied in with other evidence, in this instance with unchallenged evidence of Colin Pike who said that “there is no way she is doing full time hours. Some days she does no wok at all. On others she may do four or five hours. I know she feels safer being able to be on her own and at home” (w/s 13/3/07 – para 23).

Furthermore Professor Bradley rejected the suggestion that as the Claimant was doing a full time PHD she could just as easily take up a senior research post in accordance with her proclaimed aspirations -.the two were not directly comparable. A research fellow would be employed on a particular project accountable to his funders, with an obligation to make regular reports to the funder. It also involved liaison with all members of a team so that there was a much higher degree of social interaction than with a PhD.

I have already referred to the overall thrust of the expert evidence called on the Claimant’s behalf from Dr Brown. In his report of the 13^th of February 2007 following two, one and a half interviews with the Claimant in December 2006 and 25^th of January 2007 he had concluded that she had a continuing post traumatic stress disorder and a major depressive disorder, both said to be chronic. Subsequently following the joint meeting (by telephone) with the Defendant’s expert Professor Oyebode, in the Joint statement of the 27^th of April 2007 he altered that opinion so that he now agrees with Professor Oyebode that adjustment order rather than a chronic major depressive disorder is the likely diagnosis. However contrary to Professor Oyebode, Dr Brown continued to assert the persistence of affective disturbance to the present day. Notwithstanding the absence of supporting GP or hospital records, Dr Brown said he found substantiating evidence of this condition from his experience of the examination of the Claimant and the factual witnesses statements which had been provided to him..

This change of stance is explained in the Joint Statement by reference to those aspects of the Claimant’s life since September 2002 in attaining new employment, forming new a new relationship commencing and continuing a PhD degree and undertaking extensive international travel. Section D.17 upon which both sides made frequent reference during the trial reads as follows:

“We both agree that a) attaining new employment; b) forming a new relationship c) commencing and continuing a PhD degree and c) undertaking extensive international travel are inconsistent with a diagnosis of unresolved posttraumatic stress disorder and unresolved chronic major depressive disorder.

However Dr Brown believes that none of the above are straightforward and all the activities above are connected with her loss. Dr Brown believes that these activities would not be inconsistent where the individual was suffering from a post traumatic stress disorder with depressive symptoms as part of an adjustment disorder, but probably would be inconsistent with a major depressive disorder.”

In support of the view that the alleged inconsistent activities were in fact connected with the loss and not inconsistent with a continuing adjustment disorder, Dr Brown both in the Joint statement (C5) and in oral evidence emphasised that there had been a severe disruption in the Claimant’s life and that so much of her life now had a focus connected with death: her PhD topic, her work in a hospice, and the fact she had formed a relationship with her husband on the basis of being able to make a connection with him through his bereavement on the death of his father.

Dr Brown reported that subjectively Miss Jones did not experience herself as recovered and she did not regard herself as the same person and his opinion was that there was a ‘pervading backdrop of unremitting sadness,’ and that ‘bereavement issues were still present and predominating.’ He accepted the Claimant’s account that she was a different person, no longer extrovert, who found people difficult to relate to except in defined circumstances, e.g. when taking narratives from bereaved parents or working with and around terminally ill people in a hospice.

I have already referred to Dr Brown’s opinion that the Claimant was in effect adopting strategies to deal with her trauma and sadness by moving into areas of work with other individuals who were traumatised and had suffered losses. In oral evidence Dr Brown adopted and agreed with the characterisation of the Claimant made by Prof Bailey that the Claimant now regarded herself as an “omnipotent rescuer” and this was part of her continuing disorder.

In the Joint Statement Dr Brown said that he did not agree that apparently good functioning in one area necessarily excluded serious problems in other areas of functioning. In any event, perceptively perhaps in the light of the evidence Prof Bailey was to give before me, he considered in that statement that he should not comment on the status/significance of the PhD work, absent sight of her supervisor’s report which might /would be clarifying- although the Claimant had told him that she could not make meetings for review.

In oral evidence in the context of the answer he had given at D17 he explained that in the light of the listed factors, following his conversation with Professor Oboyde he had accepted the idea of an adjustment disorder rather than a major depressive one, to understand “the loss” side of the Claimant’s continuing suffering which was characterised by protracted mourning and disruption in her social and occupational life. This he said was the aspect of pathological grief or atypical bereavement in conjunction with a mood disturbance – sadness, lack of joy. He continued to believe however that after three months following Bron’s death the affective disturbance was severe enough to be considered a major depressive disorder at that time. He repeated his belief that the Claimant has suffered continuing depressive episodes of the type that previously would have been called “masked depression”.

Unlike Professor Oyebode, Dr Brown considered that trauma played a large part in the Claimant’s overall presentation. He emphasised that the Claimant had experienced;

“the trauma of hearing that Bron had severe brain damage, the trauma involved in withdrawing life support, the trauma caused by the fact the Trust felt she might be responsible for Bron’s death. 18 months later the trauma of the inquest which she experienced as insensitive, hostile, accusatory and blaming and her intense belief that she might be put in prison if she was found responsible”.

PTSD

Dr Brown moreover maintained the opinion that Claimant had suffered and continues to suffer from post traumatic stress disorder which had led to flashbacks initially and a pattern of avoidance and hyper arousal. He accepted Professor Oyebode’s view that the pattern of avoidance in relation to Exeter Hospital was ‘atypical’ but emphasised the Claimant’s statement that in October 2003 she moved house to a cottage on Dartmoor by reasons of feelings engendered by the next door neighbour becoming pregnant. He continued to state that he took very seriously the Claimant’s description to him of herself as being “annihilated” by what he summarised as the experience of ‘the labour, the loss and the Inquest’

Dr. Brown did not accept that there was anything inherently problematical in the apparent inconsistencies on the avoidance patterns upon which Professor Oyebode placed such significance. He again emphasised the conflicting categories of the Claimant’s condition relating first to loss and secondly to trauma and all depended on which aspect of her condition was uppermost at the time. “Loss” represented the loss of her day old child and the particular sequence flowing from that manifesting in her social life, her work and her immediate family and which had resulted in his view in a chronic adjustment order. This was all connected with the Claimant’s attempt to grieve.’ Trauma’ related to her experiences – her obstetric experience, the turning off of the life support machine, and those flowing from her hearing here baby was brain damaged and imagining she might still have a daughter and so forth. When the Claimant went into Exeter (as she said she did) to buy a specific picture (a photo frame for Bron) this was part of the loss aspect. When she was avoiding associated places this was a manifestation of the trauma.

I quote from two passage of his evidence emphasised to me on behalf the Claimant

in closing submission:

“ Ms Jones is very significantly troubled. This is understandable. It is hard to justice to what happened to her. She never had a normal moment with her child. Bron was born brain damaged. She was transferred to ICU where she died 24 hours later ……the psychiatric disorders of adjustment disorder and Post Traumatic Stress Disorder provide a conceptual framework for the large volume of material facts and observations. This can be conceptualised making use of diagnostic tools. It is a way of conceptualising extreme problems. There are here categories to do with loss and categories to do with trauma”.

“There may be an apparent inconsistency but the loss and grief means she wishes to mourn and be near the child, e.g. the grave. On the other hand the trauma means she may avoid things associated with the child”

And, in the context of giving evidence that in accepting treatment for her adjustment disorder the Claimant ran the risk of being re-traumatised, he referred to

“the combination of the chronic adjustment disorder and the ‘brick wall’ of the trauma arrests the grief process. Bereaved in a sympathetic environment – when this happens the pain of the trauma comes up”.

Dr Brown’s opinion as to prognosis is that the Claimants life has been severely affected and disrupted in complex ways and will require sustained and intensive help if she is to recover fully. In his report (16.16) he said that if she had adequate treatment she might overcome her experiences of loss eventually, and have the chance of better health, integration and employment, with a probability of 40%. The question of what precise treatment was required was best he thought addressed in a purely clinical context where the Claimant has established some trust. He recommended that she should be offered assessments for psychological therapy and treatment. He speaks about the “possibility” of combined psychological treatment with anti depressant medication. Allowance in his view should be made for a series of consultations with a psychiatrist with expertise in psychopharmacology at £200 per session for at least 8 sessions. If after full consultation and explanation the Claimant had the opportunity to make an informed consent and decides to pursue the option of ongoing psychotherapy, allowance should be made for twice weekly sessions over three years in psychodynamic therapy at a cost of £60 per session (£120 per week over 120 weeks - £16,000).

This is to be contrasted with Prof Oyebode’s view that the usual allowance is for one weekly psychotherapy session running for 40 weeks and (JS, D.22) “nothing about this case suggests a requirement for more intensive and vigorous treatment.”

However, in the light of his reconsideration of his diagnosis in the light of Claimant’s life events, I should record that in the Joint Statement, Dr Brown no longer regarded the Claimant’s condition as “extremely disabling” as he had previously opined.

I should record that in the Joint Statement at section C.1 both Professor Oyebode and Dr Brown agreed that the Claimant “suffers or has suffered” from a large number of symptoms, namely ‘distressing dreams and nightmares, difficulties with sleep including early morning waking, sadness and low affect, changes in appetite, and in weight (although difficult to assess post pregnancy),difficulties in thinking, concentration, lethargy, suicidal ideation, loss of interest in work, anxiety when separated from son, anxiety relating to her subsequent pregnancy necessitating an elective caesarean section, impaired capacity to work, impaired capacity to interact socially, impaired capacity to function in close personal relationships, tearfulness, feelings of hopelessness, episodes of panic including palpitations, tremors, racing heart, and sweating, desire to avoid people’

The only disagreement disclosed in C.1 - apart from whether the Claimant has now recovered - is in relation to the matters I have already identified which go to trauma and blame. Dr Brown said “yes” to C1a. (intrusive and recurrent recollections of traumatic events – the labour, neonatal period, following death and the inquest – including images, thoughts and perceptions); “yes” to C.1.d (psychological stress at exposure to internal and external cues – e.g. the avoidance of Exeter and the hospital there); “yes” to C.1.g (Guilt) and to C.1.h (self blame). Professor Oyebode as I have already indicated said “no” to each.

I have already referred to parts of Dr O’Keane’s reported opinion. Before turning to my conclusions in this case I should look at her views in a little more detail, albeit she is no longer relied on by the Claimant. As indicated, her evidence now comprises two reports of the 23^rd of May 2006 and 31^st of October 2006, a response to questions of clarification (under CPR Part 35) dated 22^nd of October 2006 and a letter disclosed in the course of the trial dated 119 of June 2007 which was in response to a letter from the Claimant’s solicitors dated 19^th June 2007 which is also before me.

In her report of the 23^rd of May 2006 Dr O’Keane’s conclusions were that the Claimant had suffered from clinical depression for about 18 months after Bron’s death, and currently had ‘some symptoms of depression that were still lingering ‘and further that from the history given to her the Claimant had suffered from PTSD which had lasted for approximately 4 months.

In her response of August 2006, she explained that at the time of interview, the Claimant was suffering from regular insomnia, a mildly lowered mood state and some symptoms of anxiety particularly in relation to her new baby, but that these did not fulfil the criteria for a major depressive disorder, nor did these justify a diagnosis of a minor depressive disorder. Dr O’Keane explained that “the diagnosis of minor depression depends heavily on clinical judgment” and in her opinion the Claimant’s mood disturbance was not of sufficient severity nor did she have a sufficient number of symptoms outside of a disturbed core mood state (having in fact only sleeplessness). In her first report she describes that “her mood state is overall quite low but she does not feel overwhelmingly sad most of the time now, as she did for the first 2 years following Bron’s death”, although I should record that in evidence the Claimant said that did not say this..

In other words in August 2006 Dr O’Keane was saying that that the Claimant did not suffer from an anxiety disorder and as she was no longer clinically depressed medication would not be of benefit.

In her subsequent report of October 2006 following the telephone interview, she repeated her view that the Claimant did not currently fulfil criteria for clinical depression although her mood state had not restored to a previous level of functioning. However, significantly, as I have already observed when considering features of Professor Oyebode’s evidence, in that report she said that based on that telephone interview, the Claimant continued to suffer from symptoms of Post Traumatic Stress Disorder which were distressing and disabling although not amounting to a formal diagnosis of post traumatic stress disorder.

Moreover, in paragraph 9 of that report under the heading “personality influences” Dr O’Keane made two points of some significance in the context of the present case. On the one hand she said (and this is of course relied upon by the Defendant) “Ms Jones has demonstrated an ability to resourcefully patch her life together after the devastating events of the death of her daughter”; On the other hand she emphasised (as relied on by the Claimant before me) that “because of her personality type, these types of events are particularly traumatic. She is driven by a need to care for others and has a philanthropic personality. Her view of the world is essentially an emotional one. The birth and death of Bron in the above circumstances are therefore especially appalling to her”.

Perhaps even more significantly, in her letter of the 19^th of June 2007 following receipt of the reports of both Dr Brown and Professor Oyebode, she says this:

“I would have no difficulty …….defending my position and that of Dr Brown in relation to the degree of Ms Jones’ ongoing mental heath difficulties. I think I have made it very clear in my reports that Kerry Jones continues to be affected in a very negative way by her experiences and that although her mental heath problems do not reach the level of diagnostic caseness anymore, in my opinion and when seen by me that she continues to have ongoing problems and has never returned to the level of functioning that she enjoyed prior to her loss………I disagree with the opinion of Professor Oyebode …that Kerry Jones “is now fully recovered from her adjustment disorder”. This is a position that is difficult to justify given her ongoing symptomatology and the legacy that the trauma has left her in her life”.

The emphasis of the highlighted parts is that of this court. The reference to the “level of diagnostic caseness” has echoes in the evidence of Dr Brown following his being subjected to rigorous although entirely proper cross-examination designed to demonstrate the flaws in his expert opinion when set against recognised criteria for formal psychiatric diagnoses of differing kinds. On re - examination he emphasised that the problem with any point scoring basis of diagnosis is that there will be people who fall just the wrong side of the line. However, such people “can still be in condition of acute suffering but you cannot put a diagnostic label on it”.

It is also noteworthy that in her first report under the heading “Work” Dr O’Keane did say that the Claimant had been psychologically damaged by her experiences and that it was not possible to say when Miss Jones would be able to return to full time work as this was “very dependent upon opportunities occurring which she could exploit; in other words she would need to feel very comfortable with a situation she would be able psychologically to commit herself to”.

In the light of all of the above, I now state my conclusions. I agree that the essential issues for the court to resolve are as to i) the symptoms or problems that the Claimant has been experiencing since the death of her daughter in September 2002. ii) her current level of functioning iii) the correct diagnosis iv) the prognosis.

Despite the powerful submissions made to me by the defendant I do not consider the Claimant to be malingerer who has deliberately set out to deceive the court.

There were undoubtedly troubling aspects of her evidence which has given the court pause for thought. I have in mind for example her reluctance to accept that her answers to the health question on the UWE application form was given her overall evidence as to her continuing problems with sleep, anxiety, palpitations and so forth, less than truthful. Sometimes inaccuracies on matters of detail can be revealing and certainly her evidence in her recent witness statement of 20^th March 2007, that among the recurring dreams there described whose intensity increased in the weeks leading up to the Inquest, included the “Tsunami”, was never satisfactorily explained. The Inquest was in the Spring of 2004 and the Tsunami occurred months later on Boxing Day 2004. Again albeit on a matter of detail, there was a reluctance on her part to accept the inconsistency in her different accounts of her inability to attend an art class. Dr Brown reports her as saying she did not attend. Her witness statement says she did eventually attend following a phone call from her tutor but found herself painting dark horrible colours, a feature of course relied on to support her being in a continuing disturbed condition, yet never mentioned to Dr Brown. Other similar examples can be given – as already indicated a number are listed in the defendant’s closing submissions. She was for further example cross examined at length about the alleged contrast between her use of the phrase “avoided Exeter like the Plague” to Dr Brown referable to the months immediately following Bron’s death and the less emphatic description in her witness statement of 25^th May 2006 where spoke only of finding it very “difficult” to go into Exeter to do shopping. Her explanation was that she was able to go into Exeter for limited reasons connected with her child’s death (to buy a photo frame for the child, to see her solicitors) but always made sure she was in a position through car parking to make a speedy exit. And of course she also described in that same statement her habit for the first six months of driving past the hospital, the matter upon which Professor Oyebode placed such reliance. She was similarly cross examined over her alleged failure to be totally candid with the experts about when she first applied for and obtained the offer of the PhD and the fact that the initial report from her supervisors of the 13^th of June 2006 said she was making very good progress.

Ultimately however whether this Claimant is a deceiver and a malingerer must be a matter of judgment for myself and the overwhelming impression I had of the Claimant in the witness box was as described by Dr Brown that she was a very troubled person obsessed even to this day by the death of her daughter. The Claimant is undoubtedly a very intelligent person as confirmed by Professor Bradley who spoke of her being of the highest calibre whom the University regarded themselves fortunate to acquire, and it is not part of her case that she has suffered any intellectual damage.. Intelligent though the Claimant undoubtedly is however, I do not find that she deliberately set out to deceive either the court or the experts by manufacturing symptoms. As Dr Brown said she would have had to have been fantastically expert to embark on a deliberate attempt to deceive both. Indeed on this aspect I found the submissions of the Defendant somewhat contradictory. On the one hand I am asked to reject her account that she felt she could not open up to either Dr O’Keane or Professor Oyebode which she put forward as an explanation for what she regarded was the failure of those experts accurately to appreciate the true extent of her ongoing problems. On the other hand, I am asked to find that her knowledge of psychiatric symptomology and the criteria required for a given psychiatric diagnosis was such that she deliberately set out to describe the required symptomology to Dr Brown. What is inexplicable on this hypothesis and which assists me in rejecting it is that the Claimant patently did not indulge in this artificial role play with either Dr O’Keane or the Professor and indeed that she has avoided seeking help for her asserted problems from conventional medical sources (her GP, for example), a matter for which she has been separately criticised. Dr Brown told me that he did not regard her as a malingerer and on this aspect at least I accept his evidence. Even Professor Oyebode did not venture such an opinion directly. I see no reason to reject Dr Brown’s assessment that the Claimant is someone who needs a confidential environment, and that she would find a hospital setting disturbing particularly if medical students were present. I see the force of the argument that she was not so affected when seen by Dr O’Keane that she could not impart some quite detailed information about herself and her background as described in her report, but I note Dr O’Keane in her letter of the 19^th of June states that she thought it “plausible to accept Ms Jones’ explanation that she found the environment in London unsettling and because of this she was unable to be emotionally open with me”

Again despite the emphasis put by the Defendant on the detail of the Claimant’s employment history I regard that history as in fact demonstrating that the Claimant’s capacity to work was adversely affected by her experiences arising out of the death of her daughter, as she in fact claims. My reasoning is as follows. My starting point is that I accept the Claimant’s evidence that before Bron’s death her intentions were always to pursue a PhD on a part time basis funded by her employer while continuing to work full time. The reasons she gives, both financial and the relationship between her work and her then PhD topic in dementia and technology, are compelling. I see no reason to reject her evidence not challenged with Meg Price, deputy Director of DV, that DV were very keen and had offered to fund her. The application to the University of Bristol to do a full time PhD on a quite different topic from that in which she had built up a considerable amount of expertise, made as early as it was in January 2004 while still employed by DV, is really only explicable in my judgment as having been activated by a change in the Claimant’s condition which meant she no longer felt able to work in an institutional setting with a 9-5 framework.

It is true of course that she did return to DV in such a setting some 8 weeks after Bron’s death and did take up further institutional employment in October 2005 with UWE. Against this however are two matters.

First there is the unchallenged evidence of Meg Price, that the quality of the Claimant’s work at DV had been adversely affected and DV were having to find researchers to fulfil the Claimant’s obligations which she was emotionally and mentally unable to complete. This would lend support to the Claimant’s evidence that her continuing involvement with international conferences and the attendant travel was of a different and lesser quality than before. The clear impression I have from the evidence of the Claimant and Meg Price combined, is that the Claimant could no longer expect that which had been a reasonable likelihood prior to Bron’s death, namely that she would be almost as a matter of course, be offered a new project on the expiry of the current one, as had happened before, and this really is only explicable on the basis of the Claimant on returning to DV was underperforming at work. Further, there is the supporting evidence of the substantial amount of sick leave in March and April 2004 and use of holiday entitlement.

Secondly, the history of the Claimant’s employment with UWE is not one of dedicated commitment on her part. The defendant itself emphasised the documented history that the Claimant was on maternity leave from April 2005 from which she returned early on only to take her annual leave before handing in what the defendant describes was a “pre-planned” resignation. The Defendant seeks to use this documented history as evidence of the Claimant’s lack of bona fides, in particular in her dealings with the experts. I have however would see it rather as evidence of someone whose heart was not in her work from which she was seeking to escape - a very different kind of person from the committed performer described by those who knew her before Bron’s death (e.g. Kim Warren and again Meg Price).This assessment would certainly marry with the Claimant’s own account of the reality of her very limited work pattern at UWE which I have already described and which I accept. I do not ignore of course the positive references which the Claimant was able to garner around the date of the Inquest and which she used in support of her applications both for the PhD and the UWE position or that she did refer to her own health as “ excellent” in the UWE application, but these matters do not in the end undermine the firm conclusion which I have reached on the overall evidence that the effect of Bron’s death upon the Claimant did materially affect her capacity for full time work and did materially affect her career pattern in compelling her into following a full time course of PhD study as opposed to part time. I accept the Claimant’s uncontradicted evidence that she turned down an offer made to her by UWE to do a PhD as part of her employment with them. The Claimant will not be the first person to lack candour in an application for a job which she needed to obtain although it is regrettable that she did not acknowledge this lack of candour openly to the court.

In the round although again I accept the force of many of the forensic submissions made by the defendant upon the Claimant’s credibility I have found myself compelled by the evidence of the Claimant’s factual witnesses to the conclusion that the Claimant is not a liar, and that as a result of the death of her daughter she has indeed been suffering the various “agreed” symptoms described by the experts in the Joint Statement at C1 which I have listed above in paragraph 103 together with the additional symptoms which only Dr Brown would admit to in the Joint Statement, namely the intrusive and recurrent recollections of traumatic events,(the labour, the neonatal period, the period following death and the inquest) and those associated with feelings of guilt and blame. I leave aside for the moment the diagnostic label to put on this symptomology but I have no doubt that the independent evidence of the lay witnesses is that the Claimant did become a changed person in the way described and one particular operating feature was the traumatic effect upon her of the effects of the labour, the loss (including that which Mr Forbes describes as the particularly harrowing effect of the decision to turn off the life support machine) and the Inquest, and her perception that she was being held to blame and the engendered feeling of guilt. I have set out the evidence in support of this finding at the beginning of this judgment and I found it particularly compelling. On the question of trauma,- again leaving aside diagnostic labels - I found Dr Brown’s evidence compelling since it tied in not only with the Claimant’s own account but those of the lay witnesses . I accept his view that trauma played a large part in the Claimant’s presentation to him. For convenience I repeat again his own words. The Claimant had experienced:

“ the trauma of hearing that Bron had severe brain damage, the trauma involved in withdrawing life support, the trauma caused by the fact the Trust felt she might be responsible for Bron’s death.18 months later the trauma of the inquest which she experienced as insensitive, hostile, accusatory and blaming and her intense belief that she might be put in prison if she was found responsible”.

I am equally satisfied that the Claimant has not made a full recovery in the sense that her symptoms continue to a degree which means she has not returned to the level of functioning she enjoyed prior to her loss.

Again the question of diagnosis as of today and whether, to use Dr O’Keane’s words, the ongoing symptoms still reach a level of “diagnostic caseness” is one to which I again shall have to return but I have no doubt that the Claimant’s problems cannot be said to have largely resolved . To this extent I cannot accept Professor Oyebode’s view that the Claimant had made a significant recovery by December 2004. On this aspect I consider his evidence to be particularly weak. I have already referred to the complete absence of any supporting analysis to explain his interpretation of the Claimant feeling “different” as meaning “significantly recovered”. I accept the Claimant’s evidence in principle that she has yet to recover since in my view this proposition is clearly supported by the evidence of Colin Pike to which I have referred in relation for example to the continuing dreams, and the very helpful evidence of Professor Bradley. I regard the reliance of the defendant on the various strands of the claimant’s life events since Bron’s death as too superficial and I accept the basic point made on behalf of the Claimant that when looks beneath the surface, that which appears to be evidence of normal functioning (e.g. the return to work at DV, the employment with UWE, the embarking on a PhD) is in fact not the case. It is no part of the Claimant’s case that she has suffered intellectual damage hence the fact that the contents of the various application forms show an ability to express herself in an intellectually rigorous way does not mean in my judgment that she was not nonetheless genuinely and adversely affected in other aspects of her functioning at work and outside work. The fact she was able to complete the published chapters in journals with the support of others not inevitably mean that she was generally back to normal or that she thereby demonstrated the ability to hold down a full time job and I accept her evidence that she currently is not so enabled.

I have already set out Professor Bradley’s evidence in some detail. The importance of it is that it confirms the view of Dr Brown that the Claimant has been adopting strategies to deal with her continuing problems, which he described as trauma and sadness, by moving into areas of work with other individuals who have been similarly traumatised and suffered losses. Professor Bradley in effect destroyed one of the main planks underpinning Professor Oyebode’s opinion of recovery, namely that the Claimant’s embarking on her PhD course and undertaking interviews and so forth was consistent only with resumed normal functioning and the equivalent of a the return to full time work. As I have already explained Professor Bradley’s evidence was that in her view the Claimant’s choice of PhD was strongly motivated by her therapeutic needs, that she doubted the Claimant would have been able to do a PhD or conduct research interviews if the topic were no so related to her own experience of neo-natal death, that a PhD was not the equivalent of a structured 9-5 job, and in particular its demands which called for no particular routine could not be equated to the demands of a senior research post. I accept the evidence. Her evidence moreover was that she continued to observe symptoms of stress and loss in the Claimant who had not in fact completed only half of that which would have been expected in a person of normal function. Colin Pike himself of course confirms that the Claimant is not doing full time hours.

In addition of course Dr O’Keane’s view in her letter of the 19^th of June was that whatever ones views on diagnostic caseness, the Claimant had never returned to the level of functioning she enjoyed prior to her loss, and she disagreed with the opinion that the Claimant was fully recovered from her adjustment disorder, given the Claimant’s ongoing problems and symptomatology and “the legacy that trauma has left her in her life”.

I find the question of the precise diagnosis much more difficult. On this issue I did not find either expert called before me entirely convincing. On the one hand I accept that Dr Brown’s willingness to make a diagnosis of PTSD and indeed continuing unresolved PTSD, notwithstanding the Claimant’s own evidence of initially driving into Exeter past the scene of the initial trauma without suffering any symptoms to be expected of such a cue, did not fit easily with the avoidance criteria recognised as being required for such a formal diagnosis in ICD-10. I have a sympathy with the Defendant’s description of Dr Brown’s understanding of PTSD as defined in the recognised works, as flawed, and much of the cross examination designed to show this was effective, in particular in relation to the autonomic features of PTSD. I have also to bear in mind that Dr Brown was initially prepared to accept that the Claimant was suffering from a major depressive disorder which was “extremely” disabling until his discussions with Professor Oyebode lead him to amend that to a lesser adjustment disorder. There is some force in the submission that Dr Brown may suffer a limitation because he is not normally called upon to make diagnoses. On the other hand I found Professor Oyebode’s evidence troubling in certain aspects, in particular his initial denial that the Claimant had suffered any symptoms of guilt or blame when she patently did and in his general failure to address the contribution made to the Claimant’s overall presentation by trauma in particular in relation to the witnessing of the switch off of the life support machine described by Mr Forbes and the effects upon her of the Inquest which Colin Pike had graphically described to him. I have already accepted that on the overall evidence trauma has played a part in the Claimant’s problems albeit without necessarily giving rise to what Dr O’Keane would call a “full blown” PTSD. I have already moreover commented upon the apparent lack of rigour in the professor’s conclusion of a significant recovery by reference to unspecified information.

My conclusion on diagnosis has to start from the proposition that whatever the correct diagnosis in this difficult and complex case, I am entirely satisfied that the Claimant has been suffering from the effects of a prolonged pathological grief reaction exacerbated by the effects of trauma and feelings of guilt and self blame and that whether or not the Claimant’s current mental heath symptoms in Professor Oyebode’s words “warrant a diagnostic term”, she continues in the words of Dr O’Keane to be affected in a negative way by her experiences, so that she has yet to return to her previous level of functioning. I am quite satisfied that initially she did suffer from an adjustment disorder in the recognised sense albeit it may never have reached the level of a recognised major depressive disorder ,and this certainly extended through the 18 months leading up to the Inquest and beyond. The only question for me is whether her present symptoms warrant a formal diagnosis. I have been impressed by the consistent evidence of all experts that in the field of psychiatric illness, that this a matter of often fine judgment as to which side of the diagnostic boundary a given set of symptoms fall. I am satisfied that it would be wrong to find that the Claimant has ever suffered PTSD in the formal sense for the reasons given by Professor Oyebode. Equally I am satisfied as found by Dr O’Keane as well as Dr Brown that the Claimant has suffered the effects of trauma and continues to do so, as exemplified by the dreams spoken to by Colin Pike and the vivid memories she spoke to Dr O’Keane. I do not find she is lying when testifying to these matters.

Ultimately I have been convinced by the submission that I should accept Dr Brown who was undoubtedly a careful and thoughtful witness alive to the inconsistencies and apparent contradictions in the Claimant’s reported behaviour, as the one expert who has best conceptualised the Claimant’s problems not only in terms of loss but also by recognising and giving weight to the continuing effects of trauma and the feelings of guilt and blame. Although I do not accept his view of an unresolved PTSD in any formal sense, I have decided I should accept his diagnosis of a continuing adjustment disorder, the persistence of affective disturbance, a condition which continues to be exacerbated by trauma and the effects of guilt and self blame, which requires treatment in the form of intensive psychotherapy

On prognosis I am not as pessimistic as that put forward either by Dr Brown or by the Claimant in closing submissions. Dr Brown’s 40% assessment of the probabilities of the Claimant overcoming her experiences of loss eventually, assuming the Claimant decided to accept ongoing psychotherapy, was made in a report in which he diagnosed a major depressive disorder which was extremely disabling. His current diagnosis of an adjustment disorder recognises a less serious condition which is not as disabling. I cannot hide from my own assessment that it was not without some careful consideration of the competing views that I concluded the Claimant’s condition did fall inside the diagnostic boundary wall. Equally it is obvious to me that the Claimant is a highly intelligent woman who is likely to accept and respond to the sort of psychotherapy Dr Brown advocates, if sensitively and appropriately offered to her. In part she will driven by her own professional aspirations albeit in her now chosen field. As regards the intensity of the psychotherapy required I am prepared to accept Dr Brown’s assessment but only for a period of one year not three. I will also allow the cost of his recommended prior consultations with a psychiatrist with expertise in psychopharmacology.

In all these circumstances I propose to award general damages on the basis that a significant recovery is likely here by 2010 and that the Claimant will by that date have acquired her PhD and be in a position to return to full time employment. As regards her claim to loss of earnings both past and future, I accept her evidence as to her likely career pattern had the loss of her daughter not intervened and her claim to losses to date and to 2010 as now presented in closing submission. As the future thereafter, where I part company with her claim even as now presented is that I have little doubt that whereas it is reasonable from 2010 to allow say a further period of 5 years when the court should take her likely earnings as reflecting average female earnings to take account of and reflect difficulties the Claimant may experience in returning to full time work, thereafter I do not consider it proper to award any continuing losses. The Claimant in my judgment by 2015 is more than likely to have achieved her ambition of senior research fellow if not beyond. Professor Bradley spoke of her high calibre. In addition I will award a relatively modest sum to reflect a handicap on the open labour market and ascertain degree of vulnerability to future periods of unemployment. The modesty will reflect in part the defendant’s submission that in the past the Claimant has shown enterprise even when under the disability of which she complains, to obtain employment at UWE.

Based on these findings my award under the various headings set out in the Claimant’s schedule of loss are as follows. I deal with specific discrete questions as they arise.

I make clear that I do not deal with interest as such but invite the parties to make submissions as to what interest should be included in the final judgment figure in the light of my awards.

I include in these the entirety of the claim in respect of personal injury as set out at the beginning of this judgment, to include the physical injuries complained in relation to the labour and the delayed delivery, as well as the psychiatric injury which I have found. I find the psychiatric injury in all the circumstances of my findings does fall into the moderately severe category (bracket £11,200 to £32,000) described at A (b) of the current Judicial Studies Guidelines. That category describes cases “were there will be significant problems associated with factors (i) to (iv) but the prognosis will be much more optimistic than in (a); factors (i) to (iv) refer to (i) the injured person’s ability to cope with life and work;(ii) the effect on the injured person’s relationships with family friends and those with whom she comes into contact ; (iii)the extent to which treatment would be successful.(iv) future vulnerability. In all the circumstances I assess general damages in this case at £20,000.

I take the view that the cost of the wake is not a recoverable funeral expense within the meaning of section 3(1) of the Fatal Accidents Act but all the other claimed expenses which have been incurred are. These total £763. I also allow a sum for the cost of a headstone. It seems to me that this is not irrecoverable simply because it has not yet been incurred as I am satisfied that it will be and is part and parcel of the funeral expenses even if a much delayed one. I must however have in mind the principle of reasonableness. I have in mind the Claimant’s evidence about the specially commissioned stone which she seeks which could cost up to £4,000. I allow £2,000.

These are awarded in the standard sum of £10,000.

I do not allow the books said to have been bought to help her in her bereavement problems or the costs of moving house three times, again said to have been brought on by her condition .It is not that I reject her evidence that the books were of help to her, at least in her understanding of her problems, or that the initial move at least was provoked by the knowledge of the impending birth next door. I simply apply again principles of remoteness, reasonableness and proportionality

I heard no oral submissions on these specific items. They total £8349.30.Of these £5,419.30 relate to the cost of representation at the Inquest. I agree with the Defendant that this is not a recoverable cost in these proceedings. It is a disbursement. Its causal link with the injuries sustained as a result of the neonatal death is dubious. I will certainly allow the cost of the layette at £690 but no more. The other items, relatively modest in cost, relate to attempts which the Claimant says she undertook to seek alternative sources of employment such as massage therapy. However the Claimant was not made redundant at DV until August 2004 and by then had obtained her employment at UWE, albeit employment to which she was not fully committed, and was actively pursuing the option of her full time PhD. I do not consider this head of claim has been made out beyond that which I have indicated, a total of £690.

I allow these in full as pleaded for the reasons already given. They are based on a career pattern which the Claimant would have followed with DV or an equivalent employer but for the effects upon her of the death of her daughter which I have accepted. See above at paragraph 25 et seq. The claim is properly brought in respect of loss of 37 days pay to attend the Inquest and her continuing problems, having used up her annual leave, her loss of earnings in the 6 week gap between leaving DV and taking up employment at UWE, and her loss of earnings after leaving UWE in October 2005 to start her full time PhD. I allow them at the pleaded figure of £9,330.59

Again for the reasons already given, I allow the loss of future earnings now contended for in the Claimant’s closing submission from between 2007-2010 and then between 2010-2015, but no further This is based on the career pattern I have accepted that the Claimant would have moved from grade F to grade F research fellow in 2008 and to senior research fellow grade G in 2009. The total of these losses is £103,006 which I increase to £115,000 to allow for handicap on the labour market thereafter.

This loss is pleaded on the basis of a loss of 8 years’ pensionable employment, and is put on what is described as the conservative basis of the difference between an academic pension with and without the 8 years additional service. On the basis of my findings I see no reason to reject a claim on this basis. I will allow £40,000 under this head.

It follows that subject to interest I award damages totalling £206,071.59 made up as follows:

On handing down of this judgment before making any final order I will hear submissions on interest and costs.

Appendix A: Claimant’s Chronology

SR 22.6.07 4

Appendix B: Defendants Chronology