Connor v Castle Cement & Ors

Mere grief, distress, anxiety, sleeplessness, despondency, sorrow and the like are not compensable in a negligence claim. Everybody is expected to deal with such ordinary nervous reactions to events, even if difficult and injurious events, with fortitude in the normal course of life. In order to obtain a remedy, the threshold for mental damage to be established by a claimant, is that he has suffered from some genuine, recognised psychiatric disorder as a result of the Defendant’s negligence. Nothing less will do. The purpose of this preliminary trial was to decide if George Connor could prove that he has more likely than not sustained a recognised psychiatric disorder after an incident at work during which he inhaled noxious fumes as a result of the negligent conduct of the Defendants.

The Claimant (“C”) was engaged by S and S Steel Fabrications limited (2nd Defendant) to work at cement factory premises owned by Castle Cement Limited (1st Defendant) at Clitheroe, Lancashire. His claim relates that in mid January 2010 when he was working in a large structure known as a cyclone, for a number of days he was exposed to fumes emitted by other contractors on the site namely Vesuvius UK Ltd (3rd Defendant) and/or staff for whom the 2nd Defendant was vicariously responsible. C alleges that this cumulative exposure led initially to acute chest pain and breathing difficulties diagnosed as bronchospasm secondary to fume inhalation (the “respiratory episode”), and thereafter to a chronic psychiatric/psychological condition not attributed to any organic brain injury. The factual and legal relationship between C and each Defendant has been pleaded as well as the duties owed by reason of those relationships. The factual nexus between the incidents of exposure and the alleged breaches of duty were identified and the specific allegation made that the breaches of duty had caused or materially contributed to the physical and mental injury relied on.

An order was made by the Court of Protection on 5 September 2011 stating that C lacked capacity to make decisions for himself in respect of his property and affairs. That order remains in place. By a further order of the Court of Protection dated 17 November 2011 C’s wife, Rebecca Connor was appointed his financial deputy and she commenced this claim as his Litigation Friend. Proceedings were issued on 20 December 2012.

Each Defendant filed a Defence in May 2013. As well as denying any liability to C they made allegations against each other for any loss C might establish. None of the Defendants pleaded a positive case relating to the causation of C’s psychiatric injury, if any. In particular and significantly for this trial, despite specific targeted correspondence sent to the Defendants on behalf of C intending to clarify the position, there has been no suggestion by the Defendants directly or by implication, that C is deliberately feigning or exaggerating his psychiatric condition. The Defendants require C to prove his case: no more. As observed by Lord Mance in Sienkiewicz [2011] AC 229 at 193 (albeit in the different context of a mesothelioma claim):

“There are cases where, as a matter of justice and policy, a court should say that the evidence adduced (whatever its type) is too weak to prove anything to an appropriate standard, so that the claim should fail.”

On 13 October 2014 a Preliminary Issues trial was ordered by District Judge Stephens so that issues of liability and causation, together with contribution and indemnity as between Defendants, should be determined before quantum. The original formulation of the preliminary issue was in the following terms:

At a Pre Trial Review on 10 December 2015, Mr Justice Kerr agreed that the issue of prognosis for any psychiatric injury proved to have been sustained and caused by the Defendants’ breach was an issue for quantum. At the trial it has been the parties’ position that the same applies to such issues as the duration of any psychiatric injury, whether C might have developed the same or a similar injury regardless of the inhalation of fumes in January 2010, the extent to which the injury has been prolonged by the litigation and C’s current condition. By Kerr J’s order therefore, the preliminary issue as to causation was restricted to whether:

By letter dated 30 December 2015, the Defendant wrote to C’s solicitors to admit breach of duty without qualification and indicating that they have resolved all issues of contribution between themselves.

By reason of those admissions (made as late as 10 working days before this trial began) and further clarification as to what was really still in dispute before the evidence was called, the parties agree that C has satisfied the court that he was exposed to noxious fumes and was caused the respiratory injury in the way he alleged. This reduced the scope of the trial, indeed the trial commenced with only the issues identified at paragraph 6 above extant. By reason of an important further concession by all the Defendants at the time of closing submissions as to the causation of any psychiatric damage proved, the issue for this trial has been refined to simply this:

Given the lack of conflict between them on the issues for this trial and the employment of C by the 2nd Defendant, Mr Rawlinson QC has taken the principle defence position in the hearing. The Defendants put C to proof on the balance of probabilities that he has suffered a psychiatric injury for which compensation in damages for tortious conduct is recoverable. If he persuades the court that it is more likely than not that there is such an injury he succeeds, otherwise he fails in this preliminary issue. Whether or not C is successful, there will have to be a further trial to assess comprehensively the extent and duration of both the admitted physical and any proved psychiatric injury, C’s present prognosis and the quantum of damages to be awarded to him.

The following (necessarily selective) chronology focuses on those events relevant to this judgment which has, as explained, a limited scope. C lived at New Forge Stables, Accrington Road, Hapton near Burnley in Lancashire where he and his partner Rebecca Lord ran a pet hotel and had stables. He also worked as a farm and general labourer. C carried out work at the 1^st Defendant’s premises between 15 and 22 January 2010 where he was accidentally exposed to fumes which caused a respiratory illness. Between 22 and 26 January he was admitted to Blackburn Hospital. He was visited there by his (now) wife Rebecca and other family members.

On 3 February he attended Bolton Hospital after visiting his GP experiencing shortness of breath. Steroids were prescribed. It is apparent that psychosis connected to the use or withdrawal from steroids was a potential diagnosis mentioned from time to time by doctors in the next few months. Again, for the same complaint on 10 February thereafter the hospital provided information to the GP that asthma was a probable diagnosis.

On 19 February he went to his GP again and to Bolton Hospital Accident and Emergency Department. The first reference to psychiatric/psychological injury in any record from an independent source is a letter written by Simon Glover, a Registered Psychiatric Nurse, and part of the Crisis Resolution Team at Greater Manchester West Mental Health NHS Foundation Trust. This followed an attendance on C and his (then) partner, on 19 February 2010 (the date of the letter reads 19 March but it is common ground that that is a typographical error). This was when Mr Glover saw C in Accident and Emergency. It appears to be the first record of psychiatric symptoms by a medical professional. It is clear from the section headed ‘Presenting Problems/Current Situation’ that Mr Glover was told that C’s behaviour had become odd ‘a week earlier’:

“George is a 47 year old gentleman who was involved in an industrial accident five weeks ago. He was exposed to Stainless Steel and Cast Iron welding fumes and as a result spent five days in hospital. He suffered permanent damage to his lungs which are now reported to be 12% effective.

One week ago George’s partner had noticed some odd behaviour which has declined since. His personality has completely changed as he is showing signs of regression to a childlike state. His partner reports childlike behaviour making childish noises and gestures and also talking incongruously like a child. His mood has become increasingly (unsure) as one minute he is laughing and then he suddenly starts to cry. This was evident during the assessment. Most information as listed from his partner as he didn’t have the capacity to fully understand (sic) and respond to questions asked. After medical review the A&E doctor stated his presentation is not directly due to his accident. All medication has been prescribed therefore it will require further ongoing psychiatric assessment to acquire a diagnosis.

This onset has been noticeable and from information from his partner he was fully functioning prior to the accident and until a week ago his mental state was normal. George is becoming increasingly frustrated due to his limited functioning since the accident and has harboured feelings of guilt as his partner has had to take on a high work load. As a result they have had to sell their house in Bolton and move into their business in Burnley for practical reasons. George’s sleep pattern has been disturbed and he is not sleeping well. He has also become despondent as he is normally a high functioning person scuba diving around the world, managing a cattery and kennels, keeping horses for shows and working as a welder. He was well liked and very active. Since the accident he has been told he will never partake in these activities again and his business and horses will be sold. I believe that this acute level of stress has severely impacted on George’s mental state and attributes to his current presentation. He also continually repeated during the session that he would be returning to work tomorrow. He showed no insight into his current presentation. If he sees steam or smoke it triggers agitated and frightened behaviour possibly related to experiences of accidents.”

Mr Glover had made further notes under various headings summarised below:

Mr Glover sets out his formulation:

“George has had many major life events recently which he has struggled to cope with. His presentation appears to be a direct result of these problems as medical staff has ruled out physical causes.”

He settled on the following plan:

“I considered hospital admission for this gentleman but his partner was reluctant for this to happen as she feels he would be unable to cope. She states she is able to manage him currently and due to his presentation I agreed he would not cope with acuity of an inpatient ward which would be further detrimental to his mental health. He relies heavily on his partner and looks to her for all his needs. There appear to be no risks other than if he was to be left alone but his partner assures me this will not happen. I have accepted him for home based treatment and due to his address now being in Burnley have referred accordingly to Burnley CRHT”

The following day C was assessed by the Burnley and Pendle Crisis Resolution and Home Treatment Team whereupon a record of C having ‘mentally deteriorated over the past 5 weeks’ was made.

On 22 February C attended Blackburn Hospital and with a loss of sensation to the right-hand side of his face and body and reported that this had been an on-going problem since the accidental exposure to fumes at work. Observations made at admission include:

“Sats 95% on air. Lungs only 12% efficiency”

A hospital note refers to:

“‘Personality change/strange behaviour – lungs only 12% effective..”

and makes reference to need to rule out an organic cause.

He was admitted overnight and the discharge summary includes the following:

“Admitted with hallucinations, short term memory loss and personality and behaviour problems. All symptoms started after he had fume inhalation 5/52 back. Denies sensation over right side of face and felt grip is slightly weak on right, however both were very soft neurological signs and not very reliable”

On 25 February C was making ‘funny noises and behaving like a child’, and he went to see his GP. He was admitted to Bolton Hospital until 1^st March when a discharge summary recorded C as having a diagnosis of steroid induced psychosis and asthma.

On 3March he was treated by a Psychologist at the request of the Crisis Team.

On 23 March 2010 C signed an application form for social security benefits. Included in the information supplied for that claim were the following two matters:

C made a will dated 19 April 2010. The same day he was seen at a Respiratory Clinic at the Royal Bolton Hospital. The letter to C’s GP following that review made reference to C being nervous and startled by noise. His behaviour appeared abnormal and was being treated as steroid induced psychosis. On 20 April he had a visit from Emma Yankowski, a carer engaged by the local Social Services, arrangements were made for her to attend twice a week at set hours of the day and those visits were carried out over the next month or so.

C instructed solicitors and made a witness statement on 10 May 2010. On 19 May he was seen by Dr Allan a Respiratory Consultant at Royal Bolton Hospital who wrote to his GP expressing doubt that C had asthma but that the main issue was his

“‘quite frankly bizarre and challenging behaviour.’ ”

In a letter to a psychiatrist specialist Dr Allan stated:

“There is no clear organic cause for his symptoms…I think people started to think that this man had a brain injury. I must stress that there is absolutely no evidence for this. This seems to be triggered by the traumatic event of being exposed to smoke…”

C was interviewed by the Health and Safety Executive on two occasions in July 2010, which is also the month when he married his wife Rebecca Connor.

In a letter headed ‘To Whom it May Concern’ dated 3 September 2010 the couple’s GP, Dr Panja states

“He is now quite disabled and needs constant supervision 24 hours a day. He is always very anxious frightened of being left alone, left on his own or going outside. He cannot cope with contact with other people and becomes extremely agitated. He needs help with all activates including dressing, bathing and meals. His partner is caring for him all the time. I would consider him to being severely disabled and would be grateful if his claim could be reassessed”

On 9September 2010 an assessment of C was carried out by Linda Harris of the Rakehead Community Rehabilitation Team. In summary C required assistance with personal care including needing to be prompted to put items of clothing on and to shower, shave and clean his teeth. He had developed hyper sensitivity to some smells and had become intolerant to quick changes in temperature and agitated in response to sudden noises. The record notes:

“The initial assessment has highlighted that cognitively Mr Connor has a very short attention span and he is easily distracted…..Mr Connor presents with bizarre behavioural patterns. He makes limited eye contact and had developed ticks which become more pronounced when he is agitated or upset. His speech and behaviour presents are very childlike.”

The assessment also referred to the fact that C was finding contact with new people or places difficult and that he had been referred to Psychology Services at East Lancashire Hospital NHS Trust. There is speculation that C’s difficulties may be the result of Hypoxic Brain injury, Post Traumatic Stress disorder and damage caused by the inhalation of toxins.

On 15 October and subsequently a neuro-psychological assessment was carried out by Dr June Robson and C was seen by a Neurology Specialist Registrar on 3 November.

A social worker, Sarah Killeen reviewed the couple’s situation and recorded her opinion in a note dated 15 April 2011

“Home visit undertaken to George and Rebecca to carry out six month review. George appears to be around the same as he was during the last home visit in 2010. George appeared nervous and when the telephone rang was unsettled. Rebecca advised that he is due to see his GP next week and hopefully some sleeping tablets will be prescribed as he is still not sleeping well. Rebecca also advised George remains very frightened of the dark. I asked Rebecca if I could have a copy of the psychology report as I had spoken to the case manager … Rebecca advised me that she does not have a copy of the report…… Rebecca advised me that they really need an increase in care. She advised that the business is now busy and she is struggling to manage the business and provide the level of support that George requires…..Rebecca advised me that she was admitted to hospital after Christmas with Pneumonia which she is still recovering from….Friends came to stay with George

At one point during the home visit Rebecca had to leave the room because of a telephone call from the solicitors’ company. During this time George told me that he hears Rebecca crying but does not feel that he can say anything. He said that Rebecca does not know George hears her. He told me she feels she can take on everything but really cannot manage everything.”

A covertly recorded film of C was made on the instructions of the Defence of C at home on 19 April 2011, four days after Ms Killeen’s assessment.

On 21 June C was referred to the Royal Bolton Hospital Mental Health Liaison Team following an incident in which he was reported missing by his wife and subsequently found by the police expressing a wish to die.

An application form to the Court of Protection issued on 15 July 2011 cites the following reason for requesting the order,

“An order appointing Rebecca Connor as Deputy to manage George’s property and financial affairs and, more particularly, to allow Rebecca Connor to sell the property which she co-owns with George Connor at New Forge Stables, Accrington Road. The sale of the property will enable Rebecca to purchase a more suitable property for herself and George to reside. There is currently a business run from the property, Rebecca is no longer in a position to carry on the business as most of her time is spent caring for George.”

In response to a question about how the order would benefit the person to whom the application relates, the following appears:

“George is the claimant in a personal injury claim from which he may recover substantial damages. The appointment of a property and financial affairs Deputy will help him to manage large sums of money and to ensure that funds are spent wisely and last as long as possible. The order appointing Rebecca Connor as Deputy would ensure that the finances are dealt with appropriately and in accordance with his best interests, avoiding George from being in a vulnerable financial position.”

The Court of Protection made an order on 30 August 2011 being satisfied that C was unable to make decision in relation to matters concerning his property and affairs because of:

“An impairment of, or a disturbance in the functioning of, the mind or brain and the purpose for which the order is needed cannot be effectively achieved in a way which is less restrictive of his rights and freedom of action.”

This enabled Rebecca Connor to appoint a new trustee in relation to New Forge Stables, Accrington Road, Hapton and the proposed appointment of Michael Connor was permitted. There were two further orders made on 5 September 2011 upon the court being “satisfied George Andrew Connor lacks capacity to make various decisions for himself…” Rebecca Connor was appointed as his Deputy to make decisions on his behalf that he was unable to make for himself in relation to his property and affairs. Various requirements were attached as part of the order.

On 10 November 2011 C’s wife applied for an extension of disability benefits on his behalf. The document appears to have been signed by C. It was stated within this application that C could walk only 20-30 metres, that he had balance problems, needed to use a stick and that he had unsteadiness problems. C’s wife has also been in receipt of exceptional carer’s attendance allowance administered by Lancashire County Council who undertook assessments of C. The basis of granting this allowance was that C could not be left alone for any period of time. C had a 95% disability award made on 14 June 2011 until 27 July 2012.

In 2012/13 he rode in the local hunt 29 times having taken sessions at Riding for the Disabled.

At the time that the proceedings were issued in December 2012, C and his wife still lived at New Forge Stables at Hapton. The value of the claim was said to exceed £300,000. The Particulars of Injury at paragraph 4 of the claim reads as follows

“The Claimant who was born on 20 September 1962 initially suffered respiratory symptoms diagnosed as bronchospasm secondary to fume inhalation. He has also developed symptoms consisting of anxiety, inappropriate and childlike behaviour, preoccupation with earlier life events, making childish noises, talking incongruously, covering his face, mumbling, whispering, delusions and possibly hallucinations. He has an inability to perform everyday tasks and suffers with short term memory problems. The Claimant now relies on others for his everyday tasks. Many activities have ceased or are restricted. He is unable to work. The Claimant’s symptoms are psychiatric/psychological and are not attributed to any organic brain injury.”

“5.1

The Claimant’s symptoms were triggered by the work related exposure described (above).

5.2

The work related fume/dust/substance exposure has materially contributed to the claimant’s psychological/psychiatric symptoms particularised (above).”

On 31 March 2013 C disappeared and the police were contacted. He was found and bitten by a police dog. Treated at Blackburn Hospital, he did not wish to be admitted.

On 9 April the hours in C’s care package were increased. By 5 June 2013 C was receiving forty-two hours care a week. In September that year C was taken on holiday to France by his wife’s son and the following month Rebecca Connor viewed properties in France.

On 24 March 2014 C made another Will. On 28 March New Forge Stables and the Pet Hotel were sold. C and his wife moved to France.

C was seen by a local Consultant in Limoges, France on 22 September 2014. He was registered at a GP practice on 4 December 2014.

In 2015 C made an application for local social services assistance in France. It was granted on 5 May.

Covertly recorded films were made of C in France on the instructions of the Defence on 14 and 15 May 2015.

George Connor has made one statement dated 10 May 2010. After giving his date of birth as the 20 September 1962 he described his work background and how in 2007 he came to work for Castle Cement for seven months, in 2009 for three months and one month in 2010. When not working for Castle Cement he worked as a labourer at a farm in Blackburn. At Castle Cement he helped with the cleaning and maintenance when the factory shut down annually at the beginning of the year. There was no annual shut down in 2008/09 which meant that there was two years’ worth of debris to clean up in the 2009/10 shut down. On (or about) 15 January 2010 he worked from 7 o’clock in the morning with a group of other men. They were all working for S & S Fabrications Ltd, the 2^nd Defendant and another company called Vesuvius UK Ltd the 3^rd Defendant was also working in the same location repairing broken Gunite which C describes as the lining of the cyclone within which the cement was made. The 3^rd Defendant had been working for the previous week drilling off the baked material in order to repair it. There was a great deal of rubble as a result and it was part of C’s team’s job to collect and bag up that rubble.

Together with two co-workers, C had the job of loosening the dip plates in the cyclone. There were 32 of these positioned horizontally in a circle inside the cyclone. The bracket on top of each plate was welded to the side in order to support it. In order to clean this area it was necessary to dismantle and take down the whole structure and re-build it with new plates once it had been cleaned. There was a possibility that removing the bottom bracket too vigorously could cause the structure to collapse and in order to prevent this C, his team and the 1^st Defendant’s foreman discussed welding the bracket to the structure so that it wouldn’t collapse. It was decided to proceed with this process. C was cleaning the dip plates and before the welding could start he began to taste sulphur but was not alarmed because he believed that the 1^st Defendant had had to do a risk assessment of the job before he started.

He had been provided with a hard hat, eye glasses, overalls and a white mask with a metal strip to go over the bridge of the nose. He was also given a danger card by the 1st Defendant, a hard plastic card with a metal ring on it which was to be placed into a specified board known as a ‘zone board’ in order to prevent the cyclone being started and in order to alert anyone who came to work in the cyclone that there was somebody else working there. When he placed his card in the appropriate board he noticed no other cards placed before him. Fumes were being released when he was working and when his colleagues returned they suggested that he have a break because of the fumes. It was only when he came out that he noticed another company, the 3rd Defendant, was working there. He had not realised that they were working or indeed that his colleagues had been trying to call him to advise him to leave because of the work being done by the 3rd Defendant.

Once he left the cyclone, on the way to the canteen for lunch, C began to cough. He could taste sulphur but by the time they came back from lunch he was able to carry on because the 3rd Defendant had finished. After work that day he was still coughing but he drank a few whiskies because he thought that would clear his throat. The next day, a Saturday, he was again working with a team to clean the dip tubes. He worked a full shift, ten hours. He was still coughing and he felt that it was becoming worse. A colleague on site who had an inhaler suggested that he “took a blast” on his inhaler which he did. The next day he returned to work to fit the new dip plates. The 3^rd Defendants were working underneath again and were there for about half an hour. C worked a ten hour shift but when one of his colleagues drew attention to the fumes they all left.

He worked the following Monday, Tuesday and Wednesday in the same job. On the Thursday when he attended for work a number of his colleagues expressed concern to him based on his appearance and asked whether he had pneumonia. He finished the shift but with difficulty. On 22 January while he was on site he was asked by “Ben” who worked for the 1^st Defendant to do a different job. This was putting in blaster blocks, a two-man job. The blocks weigh approximately 80kgs and are made of concrete. They had to be lifted by hand and put into position. Together with another S & S worker called David Ruston, C carried fifteen of the blocks up a flight of stairs and they were under pressure to get the work done so that the 3^rd Defendant could ‘come in the next day’. During the course of this particular task C noticed fumes being given off from the welding that was taking place and he realised that this was what had been making him ill. After about three hours they came out for a drink but C was in pain and couldn’t breathe. He was doubled up in pain.

A colleague told him to go home. This was at about 3.00 or 3.30pm. He made his way to the car and sat in his car trying to get his breath back. He made his way home getting there at about 5:30pm although the journey should only take about 25 minutes. When he got home his partner Rebecca Lord noticed that all the windows in the car were open although it was a freezing cold afternoon and snowing. She immediately took him to Accrington General Hospital where he was put on oxygen and transferred to Blackburn General Hospital. He remembers collapsing on the way in the ambulance so that the vehicle had to be stopped and the paramedics worked together to make him comfortable before they could continue the journey. At Blackburn General Hospital he was admitted and kept on oxygen for five days until 26 January 2010. At paragraph 24 of his statement he describes the aftermath of the hospital admission:

“‘24. I was then discharged home for a week and put on medication. On the 10^th February 2010 after seeing my GP when she saw there was no improvement she sent me immediately up to Bolton Royal Hospital where I was put under the care of Mr Kevin Jones a Chest Consultant. I was told my lung capacity was reduced from thirty to twelve and that I had damaged the lining of my lung and that in turn had put a strain on my heart. The hospital wanted to keep me in but I found it very distressful there and asked to go home. The hospital agreed to do so and I was then sent home with steroids and inhalers. I was told “at best I would be a severe asthmatic.” However, when the Hospital found out that my partner and I run boarding kennel they told us that we could not keep animals. Before my accident we had already put the kennel business up for sale, but the prospect of not being able to keep any animals really upset me as it has been our life. We are both Champion Show Horse Riders and it is something we both work hard to be able to do. To be told that would not be able to continue and also not even to be able to keep any pets whatsoever was too much for me to bear and I became very depressed by this and also the impact and trauma of the accident.’”

He described that it was on 12 February 2010 that he began to suffer mentally from the accident. The following symptoms are included in his description: he couldn’t bear noise even from the steam of the kettle, he couldn’t tolerate smoke, he began to experience shaking in his body, and he was unable to sleep. As a result, on 19 February, his partner took him to see the GP and he presented to her in a very distressed state. She prepared a letter for him to be referred to the Bolton Royal Hospital and the mental health team there. He says:

“…when we got there they then referred us onto the crisis team for home. The crisis team gave us a letter to take to the Blackburn General Hospital for toxicology tests on 22 February. I was kept in there until 23 February, I couldn’t sleep there, I was very distressed in hospital.”

He then described being re-admitted to Bolton General Hospital on 25 and kept in until 1 March while he was being treated by the Psychologist.

The Defendants wished to cross-examine C at trial. An experienced intermediary, Louise Sheffield, had been instructed and she provided a helpful, comprehensive report. A formal Ground Rules hearing was not considered necessary and counsel confirmed that they understood the need to formulate questions in accordance with the intermediary’s guidance. Counsel for the 2^nd Defendant and C discussed among themselves the topics on which questions were to be put to C. He was to give evidence via video-link from near his home in France and arrangements were made for this to be facilitated on the last day of the trial.

However, when C was called on the link it soon became apparent that he would not be able to provide any evidence at all. Once the intermediary had been sworn and C was allowed to see his wife on the television link he was spoken to by his own junior counsel Mr Grundy whom he knew. C’s reaction to the initiation of the hearing demonstrated a lack of facility in even basic communication. He began to repeat phrases and he appeared to be in a distressed condition. Although the court addressed him briefly in an effort to reassure him it soon became apparent to counsel for the 2nd Defendant that there would be no efficacy in cross-examining him. C’s appearance over the video link was brought to an end. Before it was switched off, when he was told he would not be required, C displayed concern that he had done something wrong or ‘bad’ and he was comforted and reassured by the intermediary that it was the decision of the trial in Manchester that he was no longer required.

In light of this, the most important lay witness called was C’s wife. She had accompanied her husband to every important medical meeting and had described his symptoms to many people whose records were relied upon by C. The Defendants’ joint position was that the Court could repose no confidence in her reliability or accuracy of recall and that the existence of inconsistencies in her accounts to various parties and over time undermined her evidence fundamentally. It was accurately submitted that much of the apparently independent recording of symptoms came into existence as a result of her recital of them to third parties who were relying on her to be a faithful rapporteur. Particular emphasis was laid on the fact that she did not agree that any change has taken place in her husband’s condition over the years: for better or worse, something she repeated in evidence. The Defence submit that this is inconsistent with the latest analysis of C’s psychiatrist, Dr Hyde who, when presented with covertly filmed footage of C which ostensibly at least, presented a healthier picture of C than his wife did, concluded that D’s condition has improved. If Mrs Connor is inaccurate about the progress of C’s mental condition, then she is unlikely to be accurate in her reporting of that condition overall.

In consequence of these considerations, and the assistance it may give in the subsequent quantum trial, her evidence is set out in some detail. In her first witness statement dated 1 June 2012 Rebecca Connor described her work as the Managing Director of The Pet Hotel Ltd a boarding establishment for all types of animals including dogs and horses. She had known George Connor since 1984 and they lived together from 1987 and subsequent to his work accident they married in 2010. They had moved into the property they owned in 2010 where they had set up Pet Hotel in 1999. She described how C helped with the pet hotel business but also worked as a driver via an agency because he was in possession of a HGV class one Licence. Around 2003 C also began to work as a General Labourer and tractor driver. Through that work he came into contact with S & S Steel Fabrications Ltd. When they took over responsibility for the cleaning contract Castle Cement Ltd, he worked under the 2^nd Defendant’s direction undertaking cleaning and fixing work periodically at the Castle Cement works in Clitheroe from 2007 onwards.

She described C’s pre-accident personality in terms that were later confirmed by others who knew him. He was strong and reliable, extremely trustworthy and dependable; somebody who was known “to get things done”. He was a good time keeper, skilled at fixing and maintaining machinery and other “hands on stuff”. He was a keen horseman, an interest to which she had drawn him after they had met. He was naturally capable, he rode at the Horse of the Year Show in the heavyweight cob show section, they went hunting together and they also showed dogs, namely St Bernard’s and Great Danes, as well as breeding them for sale. She says that they were always busy. She also describes C as somebody who enjoyed farm work and outdoor work which he considered his domain. He was physically fit and very strong and extremely active and busy. He had a genuine and caring attitude towards people, he went into schools to mentor children to try and help them put their lives back on track and he had a ‘legendary sense of humour’. She said this:

“Life made him happy and he showed it. In every breath he took it produced another smile and in turn he made others smile, a precious gift to have indeed.”

She described the events touching the accident. C went to Castle Cement to undertake repairs on 15 January 2010. He worked alongside a small team of co-workers and she knew that he was asked to work in the cyclone which she describes as a kiln used for the preparation of the cement. When he retuned home that day he was not well and had a cackling cough. His breath was laboured and he was clearly in difficulty. But he showered to remove the cement dust, had a hot whiskey toddy and took paracetamol before retiring to bed. She said he was not one to complain. During that week however, he complained of constant headaches and a sulphurous taste in his throat and mouth and she could hear his laboured breathing when they were alone together. She propped him up on pillows to raise his chest and to assist with his breathing. She said he was constantly ill and got successively worse each day. They tried cough syrup but his cough worsened and his breathing got more laboured. She said:

“Normally George would have taken bed rest as his symptoms were extremely severe. He was however concerned that he needed to finish the job and there might not be further contract work for a number of months.”

On 22 January 2010 she says that C returned home at about 5:30pm. He pulled into the drive in his car which was a hired estate car. He had all the windows down. He was literally hanging out of the driver’s door window. He was unable to speak and was constantly coughing. She saw that he was covered in dust and that his breathing was difficult, wheezing and coughing constantly. She says that he was “clearly in distress and unable to talk or communicate” and “I realised that he needed urgent help”. She moved him across to the passenger seat of the vehicle and got into the drivers side and then drove to Accrington Hospital which is a few minutes drive from their home. There he was placed on oxygen. An ambulance was called and he was taken to Blackburn General Hospital. She travelled with him in the back of the ambulance. He was given oxygen but the ambulance had to stop so the driver could assist the paramedic en route as C became unconscious.

Of his admission to Blackburn Hospital for five days she says this:

“When he was conscious he was confused and disorientated and was completely unaware of his surroundings. When George did eventually regain consciousness he did not respond to conversation or prompts and did not appear aware of specific details such as his name. His behaviour appeared curious but I dismissed it that time as being part of the shock being in hospital and his general disorientation. He was asleep for long periods often for most of the day interspersed with periods of wakefulness”.

She described that other family members came to see him in hospital and that when she took an iPod into hospital for him he behaved bizarrely and became “obsessed with it”. Upon his release from Blackburn General Hospital on 26 January 2010 he was on medication for his breathing and she describes that he continued to exhibit strange behaviour:

“..his manner was like a child and he would often sit in a foetal position with his iPod brought into his chest. He appeared scared of individuals and would back away if approached. If a car pulled into the drive he would literally hide. He began talking to himself and kept repeating words. His body shook and he struggled to focus or concentrate. He was unable to keep eye to eye contact with individuals and would move his head and vision. His conversation went off at tangents and it was difficult to maintain focus.”

She continued:

“..he developed hyper sensitivity to smells and exhibited behaviour more like what one would encounter with someone affected with mental illness. He did not make sense and his behaviour became increasingly alarming. He couldn’t stay in the kitchen because anything, smoke or steam caused extreme panic. Loud noises also caused irritation. He lost the ability to socially interact and was no longer able to engage in conversation. He lacked the social antenna to gauge social situations. He exhibited extreme emotions with highs and lows, laughing or crying at a moments notice.”

She outlined some particularly alarming symptoms:

“George was also prone, as he was in hospital, to having hallucinations. He would refer to conversations with family members who were dead.”

In evidence she said that the hallucinations in hospital occurred when he was re-admitted not during the first January 2010 admission to hospital.

Her statement continues with the visit they made to their GP on 3 February and again on 10 February. There had been no improvement in C’s condition or behaviour and the GP made a referral to Bolton Royal Hospital where her husband was seen by a chest physician Mr Kevin Jones. She was told that he had reduced lung capacity as a result of the damage caused during the work place accident. Bolton Royal Hospital provided steroids and inhalers due to his breathing difficulties.

She described C’s sleep pattern as erratic at this time. She said that he would get out of bed but be disorientated and frequently she would find him outside the building in his pyjamas talking to inanimate objects. He complained of constant headaches and suffered from tremors. Eventually he was referred to the mental health team at Bolton Royal Hospital who in return referred him to the crisis team. The team visited daily and provided input for a number of weeks during this very distressing period.

On 22 February he was admitted as an inpatient at Bolton Royal Hospital but stayed only until the following day but then he was readmitted on 25 February and stayed until 1 March. His admission was at her insistence and she said “I was in complete despair”. On 3 March she described that the crisis team brought a psychiatrist from the local neurological unit at Rakehead but C became very agitated and refused in-patient treatment at that time.

She ends her first statement with the following:

“My husband’s symptoms have continued in the same manner since his initial exposure at Castle Cement. He cannot be left independently. I currently receive help and support by way of care for George and he has been registered disabled. We are currently in receipt of benefits as a result of his injuries.”

Mrs Connor’s second statement is dated 17 March 2014. In 2012 she was able to arrange for her husband to attend riding sessions for the disabled in her efforts to help him begin to ride again. By 2013 he had begun to participate in the meetings of a local hunt. He attended, she says, on “many occasions” in the 2012-13 season but less frequently in the 2013-14 season.

She also described two incidents in which C left home and caused a search to be called. The first was in June 2011. He went missing in the evening and after she had contacted the police he was found in the canal at Ostwaldtwistle at 1am the following morning. He was taken to hospital in Blackburn suffering from exposure. She had not mentioned this incident in her first statement. She also described a similar event on 31 March 2013 when C went missing again, in the morning at about 7am, after he had got into a distressed state. The police were contacted and he was found by them after an extensive search at Huncoat at about one o’clock that afternoon. The search had involved a number of police officers, police dogs and a police helicopter. He had been bitten by a police dog and taken to hospital. Consideration was given to sectioning him under the Mental Health Act but he was eventually discharged. C was referred to the Gannow Lane Resource Centre in Burnley where he was seen on 23 April 2013 on one occasion.

Social Services were not in contact for a year or so but Susan Knox of Lancashire Social Services based in Clitheroe saw C on 9 April 2013 and determined that an increased care package was necessary. As a consequence of her assessment the 35 hours per week provided since March 2010 was increased to 42 hours from a date after 5 June 2013. As a result of the receipt of sums for his care Mrs Connor described how she has employed a number of different companies to provide care for C and thus been able to relieve some of the burden on her own shoulders. She also describes giving C equipment to fish and fitness equipment for him to use at home. Up to the date of that second statement she had continued to run the business that they both owned at the New Forge Stables but as a result of the financial hardship in cutting back the business due to C being unable to assist her it was necessary for her to sell most of their horses and the horse transporter.

She returns to describe some of the early symptoms the Claimant demonstrated:

“Initially when George came home from hospital in 2010 George would not go out of doors and was also disorientated. It has only been over time that it has proved possible to persuade him to do so……however George cannot be allowed to roam about unsupervised and consequently if he does go out to look after the animal, feed the chickens, or do woodworking in the barn, I ensure that he takes his mobile phone so that I can ring him if he is not back within 5-10 minutes. He will occasionally muck out but he is very messy and this is a job that I usually do.”

At the time of the statement C had not required any further hospital treatment save for an X-ray in 12 months or so. His prescription medication had been increased following the incident on 31 March 2013. In evidence she pointed out that although he had been able to take part in hunts C’s capability in horse riding had not been very great and he had fallen off his horse due to a lack of good balance. She also pointed out that it was necessary for there to be a neck strap around the horse in order to help C balance.

C visited his GP twice in 2014 because he had been experiencing problems on the right side of his body and his right leg had also swollen. He had told her that there had been occasions when he has lost sensation to the right side of his body. Nothing has been discovered to explain these symptoms and he had undergone some private acupuncture sessions.

Amongst the activities that C was able to enjoy was woodworking using tools, for example making bird boxes and mending chicken coups. During the 18 months before the statement C had begun to go out of doors more frequently particularly through the encouragement of their friend David Greenwood. The past four years since the accident has been a period during which she and C have had their lives on hold. In May the previous year her son had taken C away for a holiday in France which he had enjoyed and they were contemplating the prospect of moving to France.

She herself had been admitted to hospital in Blackburn suffering from exhaustion and pneumonia and has been prescribed anti-depressant medication. She says this:

“George remains uncomfortable with strangers and completely dependant on me and his carers. There have been many occasions when I have found him collapsed in an unconscious state. When these incidents occur they take 15-20 minutes to rouse him and he remains in a disorientated state. These episodes used to occur about twice a week before his medication was changed in March 2013 and now occur about once a week. I have not sought medical assistance when these episodes take place. The most recent episode occurred on Saturday and Sunday just gone.”

The witness brought matters up to date in a statement dated 10 November 2015. She made that statement in response to disclosure of a number of DVDs which contained covertly recorded video footage of C in 2011 and 2015.

Here it is convenient to summarise a representative sample of the footage. The Defendants introduced three sets of recordings of video surveillance evidence dated 19 April 2011, 6 and 7 March 2015 and 14 and 15 May 2015.

The 19 April 2011 footage was taken at C’s home in New Forge Stables. It shows C for about an hour or so standing in his property and walking around. There are signs of unusual behaviour such as a rapid shaking of his head to and fro and from side to side but he is also seen apparently in conversation with others and walking a number of different dogs around the area on a lead for short periods of time. On at least one occasion he is able to crouch down by a dog. He is also apparently able to secure a gate and then push another gate closed in quite deliberate, unremarkable movements.

The next DVD contains covertly filmed surveillance footage filmed in France, in a semi-rural setting on 6 March 2015 at about 9 o’clock in the morning. C is seen driving a tractor with a fixture on the front. He is able to manoeuvre it in a field which has a slight incline. He reverses the vehicle and also takes it deliberately forwards apparently engaged in some work. A rake-type attachment is on the back of the tractor which seems to be gathering up leaves or moving and interfering with the soil. At times C drives the tractor with one hand, the other hand he has placed behind him as he is turning around and the tractor makes some tight turns in the field during the course of the footage. He is on his own and he is filmed for about an hour. At one point he engages the front arm of the tractor with a large clump of wood, branches or bushes and appears to be manoeuvring the mechanism to take hold of and move the clump of branches.

After about fifty minutes C gets out of the cab and walks into full view. He adjusts the tool at the back of the tractor. At one point he climbs on top of the equipment at the back of the tractor and can be seen physically pushing or adjusting something there. He jumps down again without incident. He is then seen removing dirt or soil from the front arm of the tractor before getting back into the cab and reversing the tractor again. He raises and drops that tool mechanically from inside the cab before making some further journeys over the same short distance with the rake type fixture lowered. The movement of the tractor is not purposeful and if the purpose is to move earth in the area it seems a futile effort. After about an hour of this activity driving the tractor C is seen walking around speaking on his mobile telephone or walkie-talkie. He is seen turning his trouser pocket lining inside out and brushing away something from it. Later on there is footage again in his tractor in a different field and the driving appears unremarkable. Again the tool at the back of the tractor is engaged in the ground (although, otherwise the driving of the tractor seems somewhat pointless).

Further footage is taken at 7:48 on 14 May. The covert camera films a road and C is apparently in the cab of a tractor which has a large flatbed section attached to it and he is with one other person who is driving. The tractor is towing a small silver coloured car along the road with vehicles lined up behind it. The tractor has its flashing lights on and the tractor turns into a side road.In the afternoon at 14:19 on 14 May there is footage of C beside an agricultural vehicle and climbing onto the flatbed of a trailer and examining some rusty looking metal. He is seen gesticulating to somebody else who is with him on the ground. He makes a phone call on a phone he takes out of his pocket. He is speaking to the other male who is in the area with him. C then gets down from the truck and then back up again. He looks up and reaches for a chain with a hook on it which he then engages in the scrap-looking metal so that it can be lifted off the truck. He does this more than once and when the entirety of the metalware is lifted he jumps off and again speaks some more to the other gentlemen. They are then working together it would appear, putting two ends of a pipe together, moving things around the area, sometimes communicating with the other man apparently as to the work that is to be done. C is also seen in a group of four to six people and again back with the original man.

Lastly, on 15 May he is captured in a village or town apparently going to have a meal with his wife and friends, then leaving after nine in the evening.

Returning to Mrs Connor’s third statement: in summary she describes the couple re-locating to France on 30 March 2014 including the mechanics of the move to France and the degree of social security support from the United Kingdom that the couple receive (which at the time of the statement amounted to about £2000 a month). She explained that although C was declared a protected party by the Court of Protection they had been able to marry in 2010 and a family solicitor had prepared their Wills in 2010 and again in 2014. She expresses the view that C has the ability to make a Will and she was unaware that it might be necessary to involve the Court of Protection in legal transactions involving him. Everything that she did in selling their home and business in the United Kingdom was in C’s best interests. She described looking after C in France which she still found extremely challenging. At that time he was being assessed by the French authorities with a view to obtaining assistance with modifications to the house that they purchased there.

In dealing with some of the covertly filmed footage in evidence she explained that at the beginning of 2015 they purchased a tractor which is equipped with an enclosed cabin and which she describes as “simple to operate”. Her husband is able to use it and enjoys doing so to such an extent that he would drive it around all day were he allowed to. What can be seen on the DVD is a sad reflection of C’s much reduced abilities where he is driving around and around a field. She said that the job he was trying to achieve namely harrowing the field is something that would have taken him no more than a couple of hours when he was well. The section where he was seen trying to push a very large fallen tree out of the way was an attempt at an entirely fruitless activity and something that he would never have tried to do in that way prior to the work accident. She also makes it clear that during the time that he was on the tractor she was at the farm and was in sight or earshot of him. She also says that she kept an eye on her husband using walkie-talkies that were bought to replace the mobile phones that they had used. C is reasonably safe in controlling a tractor within areas such as fields but he is not allowed to drive the tractor anywhere on the public road and he also helps a friend they have made in France, with simple tasks around the friend’s wood-yard. An example of this is captured on the covert surveillance footage when C is seen helping the friend to lift scrap off the back of the friend’s trailer.

She also dealt with the covert footage taken in April 2011 and she says that C is walking back and forth within a small area close by the house with several dogs and she says that this was in the area where they kennelled the dogs. She was inside the building at the time and the Claimant kept coming in and out. His life was very restrictive at the time and he was certainly not alone.

When asked to deal with covertly filmed footage of her husband riding a horse in France she repeated that before the accident her husband was a highly skilled rider able to reach competition standard. Following a number of sessions at the Riding for the Disabled Organisation it was established that he had not lost his ability to ride but that he may behave inappropriately when riding depending on who else was present and whether he was anxious or not.

Since moving to France C has ridden on a few occasions although they have five horses at the farm. The covert footage captured in March 2015 showed her and C taking a ride which was from their farm along a verge on the side of the road for about 200 yards before turning into a bridle way around the boundary of their farm on a circuit. This continued for about a mile before it rejoined the road and then they rode for another 100 yards before turning back down the lane to their farm. It was a slow ride at walking pace and took about an hour.

In her statement she went on to describe C’s activities in France and the evidence available from a number of friends and their neighbours there. She also deals with Facebook posts which were obtained and disclosed by the Defendants. Finally she also sets out her assessment of her husband’s functioning at the time of the statement. The relevant parts are these:

“I do not believe that George can be left alone for any length of time. When I am physically with him I keep in touch by walkie-talkie/phone. George continues to have anxiety particularly with large sudden noises and with strangers and unannounced visitors. He is better in the company of small groups of friends. We have occasionally visited friend and attended small family parties and been out for meals. These are very low key occasions. George continues to have episodes of becoming vacant and uncommunicative. His episode of major outbursts and collapsing occur about six times a year and one of the most recent of these was witnessed.” (By two friends)

She also describes her husband as remaining very childlike although he appears to be much less anxious since they moved to France and there has been no repetition of his disappearing.

When cross examined by counsel for the 2^nd Defendant the witness was referred to answers she had given in response to a Part 18 Request for Information dated 1 July 2015. She confirmed that her husband’s symptoms had not changed from the first statement that she had made in 2012. He did not get better or worse, “he was about the same”, she said. She was asked about a number of applications for Social Services benefits that she had made in connection with her husband’s condition after the work accident. The purpose it transpired, of taking her to these various documents, was to demonstrate that the picture painted by her or with her assistance in these various forms was of an extremely de-habilitated individual and throughout represented the situation on the very worse of days rather than a full comprehensive picture of C’s condition. She denied, when it was eventually put to her, that she had put it ‘hot and strong’ in such reports of his condition, not through any desire to deceive but in order to avoid missing out on what she believed his condition should make him entitled to. She strongly denied that she had misrepresented C’s position at any time.

When asked by the court Mr Rawlinson QC made it clear, as he had done at the start of the trial, that it was no part of the Defendants’ case that any witness, including this one, was engaged in fraud or deliberate misrepresentation. The Defendants have not sought to put a positive case of malingering or fraudulent exaggeration against the Claimant. Any such allegation would plainly be one of fraud and would need to have been expressly pleaded with full particulars. Adopting such a tactic indirectly is prohibited and although sometimes the content and manner of questions were close to that line I am satisfied that it was never crossed.

Dealing with other topics in cross-examination, Mrs Connor stated that a claim for Disability Allowance received by the Department of Work and Pensions (DWP) on 17 March 2010 had been prepared by her with the assistance of an organisation called Welfare Rights. The application was not in her handwriting and the organisation had told her what information she needed to include and what documents were required to support the application. It was filled in at home and the content accurately reflected C’s position. She denied that it overstated that position. The application was signed by the Claimant and she thought that he was aware of the general idea of what he was signing. She was asked about references to the use of a walking stick for “support and balance” and masks “due to the extent of lung damage”. She explained that the walking stick used by the Claimant was one that had belonged to her father and C used it if he went out of doors into the garden but he very rarely went out at this time in March 2010. He would use it to get from room to room on the ground floor of their property. On a good day he would not use it at all. Looking back she could not remember the last time he had used it in the UK but it was always available to him if he needed it or wanted it. He had last used it indoors in the autumn of 2015 when he was unsteady on his feet.

She agreed that no stick was seen in any of the covertly filmed surveillance footage in April 2011 or subsequently. She also agreed that the form stated that C could normally only walk 20-30 metres at a time before he felt “severe discomfort”. The reasons for that were physical and mental at that time. As for the mental element, he found going from one room to another, even in their own home, extremely traumatic, dramatic and stressful. The physical aspect was later confirmed in the medical records because swelling and numbness was discovered on the right hand side of his body. She could not remember when that physical feature had been noted but she said that he had it in 2010. He also had it after he had been bitten by the police dog and he still has it. She agreed that on the DWP form the reference to pain and swelling was to lower limbs (plural) and that this was a discrepancy between her evidence and the form. She agreed that he walked with a shuffle at the time when the form was filled in and that he needed someone with him when walking outdoors because otherwise he would wander off or have anxiety attacks.

She was then asked in detail about the covertly filmed surveillance footage on 19 April 2011. C was outside alone for about 50 minutes but he was in her line of sight at all times and she kept glancing out of the windows to keep an eye on him. She described it as like having the care of a nine year old child. She positively remembered that during the period of 50 minutes filmed he would walk back in to the building and give her the dog that he had been with, rest and have a gap before he went out with the next dog. She agreed that in that form it was claimed that C’s former lifestyle had ended although this was only about two months after the accident. She was adamant that C’s lifestyle had ended and has ended. If her description of the impact of the accident in January 2010 on C’s life for the past six years is even mainly accurate, this cannot be an exaggeration.

Mrs Connor’s assessment is that C’s lifestyle has not changed between 2011 and the present time. By way of example she said that he gets frightened of the television if there is any confrontation on it. He does a little bit of reading and he plays childish games on his iPad. She was asked about the description of C’s conversation and she said that in around April 2010 he understood but could not concentrate on conversation; he would mutter without maintaining eye contact. He would say sentences if she was patient listening to him and waiting for him, it was not like engaging in adult conversation. He had not lost his sense of humour and he could say something witty in the midst of this otherwise abnormal conversation but the next minute he could break down and cry.

She was then asked about some visits made by Emma Yankowski, a carer appointed, it would appear, by Lancashire County Council. The carer made a record of each of her visits to C. She first met him on 20 April 2010 and it was agreed that she would see him between 1pm and 3pm every Tuesday and Thursday. On 6 May 2010 her visit is recorded in the following terms.

“Went to George’s house today. Arrived there to find him and his wife eating their lunch and watching TV. After they had finished eating they continued to watch TV whilst I chatted to them. George appeared very relaxed around me and chatted about going to vote later that day. 1 hour into my visit George and I went outside to unload his van full of mats into one of the stables. Once this was done he took me around to see his horse and a bird’s nest again very chatty and relaxed. Once back in the house I explained to George and Becky that I would be travelling by bus next time and could come later in order to give themselves enough time for their lunch break. Becky declined this offer and I left once I had made my appointments with them for the following week. I also asked George if he wanted or had any ideas of activities of what we could do on my next visit that I could look into. George said that he couldn’t think of anything and was happy to be just doing everyday chores with me.”

Mrs Connor said that she did not recall that day and did not understand the reference to unloading mats from a van. She agreed with counsel’s description of this activity as C “pottering around”.

She was also asked about a record of a call and a visit on 11 May 2010:

“Telephoned Becky today to explain that I would be coming later today as once I had researched the bus timetable I wouldn’t be able to get there until 1:50pm but would still stop the two hours agreed leaving at 3:50pm. Becky said that this was fine. I arrived at George’s house at 1:50pm to once again find George and his wife making their lunch and watching TV. Me and George chatted away whilst they ate their lunch and Becky continued to watch TV. George then asked me if I would help him outside as he needed to make some dogs mats for the kennels. So me and George went up to the stables and I helped George with the task. George was very relaxed telling me horsey stories and places he had been around the world. Whilst outside Becky shouted over to George that she was going out to the shops. George shouted back that this was OK and continued chatting to me. I didn’t get a chance to ask Becky where she was going or how long for or what happens to George when it is time for me to go as she drove off. Whilst chatting to George he told me that Becky wanted to speak to Linda regarding my visits with George. He said that Becky was hoping for more from the service and wasn’t really happy with how we had been spending our time. He said that Becky felt that Temple St Staff weren’t properly trained and wanted a specialist to work with George to do more mental tasks with him. Whilst we were outside Becky telephoned and asked George if he was ok and if I was still there. She then said that she was on her way back and checked to see what time I was leaving. Again I did not speak to Becky to confirm what I should do when it was time for me to leave and she did not give George any messages or instructions for me to follow. At 3:50 it was time for me to leave and Becky was not back. George began hurrying me up and was concerned that I may miss my bus. I asked George if I should wait until Becky arrived back but he was insistent that he was fine and that she was on her way back so I said goodbye and made my way to the bus stop leaving George outside carrying on with his task. Once at the bus stop I saw Becky approximately two minutes later arrive back. ”

She agreed that she had left C without giving the carer a time for her return but she said that if she left him with a carer he knew and was happy with she would do what she needed to within the time he was with the carer and she would always have returned in time to take over from the carer. She phoned George because she didn’t have the carer’s personal number. She agreed that the carer had made no record that her husband was upset when the carer said that she had to leave but rather that her husband had encouraged the carer to leave. She said she had criticised a carer in the past and had indeed dismissed a carer company when he had been left alone for a considerable period of time and she thought she must have complained to this carer Emma Yankowski about leaving him but she couldn’t remember the conversation that they had had. She agreed that no such conversation had been recorded but it was her experience that such conversations (ie a complaint) were not always recorded.

She said that in May 2010, her husband still used inhalers but he had seen the chest specialist by this time and there was nothing inconsistent between the content between the DWP form and his presentation in May to the carer.

She was referred to a Lancashire County Council carer’s home visit on 27 August 2010 which was an assessment visit by a Social Worker called Sarah Killeen. Miss Killeen had been to see the couple several times already. In respect of this visit Miss Killeen recorded the following:

“Rebecca said that George had had a bad day yesterday. I asked what makes a bad day. George calls it a bad head day. Rebecca said that George on a bad day cannot cope with anything and has to stay in bed. Rebecca advised me that prior to the accident other than when George was in bed he would only be indoors around two hours per day. I asked about George’s breathing and Rebecca said that his breathing has improved slightly but still gets breathless. He doesn’t go outside when windy, he sleeps slightly sat up to help with the breathing.”

Mrs Connor said it was panic that caused her husband’s breathing difficulties. She agreed that Dr Allan had told them by this time that there was nothing wrong physically with C’s lungs and she agreed that there was no record that she had subsequently told anyone that the breathing problems were not physical (as was the medical position) indeed she agreed that she had not told anyone that.

She was taken to a Facebook post she had made on Valentines day 2010 read:

“Attention all friends George seriously ill he has to sell the horses so if anyone can help please contact me. He could really use his friends right now because he always would help you if you need anything. Thank you”

She was asked why she had decided to sell the horses so quickly after the accident. She said that the horses that they owned were show horses and they needed a great deal of attention to be ready for the season which lasted from March to October. They needed exercise daily and strapping for muscle development daily. By 14 February 2010 she was struggling to look after George, the business and everything else. She knew that show producers and their clients would be in the market to buy horses between January and March so it was a timely post in the circumstances. She agreed that on 19 February that year she had posted to her Facebook friends that George needed 24-hour care. That was true.

She was shown four photographs taken at a friends 50^th birthday party which were loaded onto Facebook on 26 April 26 2010. She said that this was a party attended by some 20-30 people, some of them children. It was Deana’s party and she was a very close friend who considered Mr and Mrs Connor as family. They had all travelled to the party venue in a Hummer vehicle. It was a journey of only about 3 miles. They took a taxi back. She agreed that in the photograph C looks happy and is smiling. He drank a pint of bitter or a pint of coke but Mrs Connor said that all the photographs were consistent with his behaviour that night which was, as usual, child-like. They were not out very late and she had to prompt him to get showered and dressed and to clean his teeth and she still has to do that.

She was referred to an Industrial Injuries Disablement Benefit form also sought in 2010. She filled in that form including the section which reads as follows:

“Very unsure, not able to be on his own, with his mental illness forgets what he is doing, needs constant prompting, finds it hard to walk any distance due to lung damage. George is never left on his own.””

She was asked what “lung damage” she meant given that by that time Doctor Allan had cleared up the question of physical lung damage and no such damage had been found. She said her reference to lung damage must have been an error and she should have referred to C’s anxiety. I understood her to be saying that she should have referred to C’s anxiety about damage to his lungs.

In connection with the claim C was invited to attend on a Dr. Majeed for an assessment about a year later, on 7 June 2011. Dr Majeed recorded C’s statement which C signed. It contains the following:

“Since the LBM (believed to mean ‘last medical board’) on 27/7/10, there is no improvement in my condition. I have some neurological and psychiatric tests. I have carer seven days a week. I am frightened of going out. I cannot go out alone and need prompting to wash and dress. My wife does cooking, housework and cleaning. Carers supervise me while my wife is away at work. I am frightened of dark. I have poor sleep I need supervision both day and night. I am always anxious. I cannot cope contact with other people and became extremely agitated. I need help with all activities such as dressing bathing and meals. I am hypersensitive to certain fumes and find very difficult to cope with everyday smells. I cannot manage hot food or drinks I cannot tolerate change in temperature. I am unable walk near the freezer I am very short tempered. I have poor concentration and memory. I am still awaiting neuropsychological assessment and rehabilitation.”

This passage comes under a section in the doctor’s form which is headed Part 2 Customers Statement and the form has the following instruction:

“Record the statement as nearly as possible in the customer’s own words. Read it out to the customer for agreement and then ask him or her to sign it below.”

Mrs Connor said that she had been present during this examination and what Dr Majeed recorded was a fair reflection of C’s life in mid 2011. The doctor’s findings are also recorded on a subsequent page under the heading Clinical finding. The instruction reads:

“Record details of your clinical findings include a description of the customer’s general state of health record the exact nature of any physical abnormality resulting from the accident/prescribed disease or not.”

And then underneath this is the following in handwriting:

“Assessment explained and consent obtained for examination. Customer appears withdrawn. No eye contact. Doing bizarre movements and has bizarre behaviour. Appears agitated. Has very poor concentration and memory. Lacks motivation, confidence and insight. Appears confused. Unable to manage serial seven (a task of counting back numbers from one hundred in sevens). Has severe cognitive impairment and severe learning disability. The client was uncooperative and he declined any physical examination. He declined to stand or walk he was not breathless at rest.”

Mrs Connor said she remembered C being asked to stand up and he didn’t do so because he was in a state of shock as he always is when he meets a stranger. She said that they managed to get him to stand up eventually but it was very hard for the doctor to get anywhere near her husband. She was asked about the difference in the presentation of C to the carer Miss Yankowski and this doctor and she said that C knew the carer who he had met on several occasions whereas he was meeting the doctor for the first time in a strange building, with strange noises all of which the witness consistently said would disorientate him. This was so even if he saw somebody who he knew but had not seen for a long time. She was asked if she had explained this to Dr Majeed and she said that she did not do that. She saw her duty whenever C had to meet anyone new as to reassure him. The doctor assessed C as still having 95% disability.

She was asked about another disability living allowance claim form which bears her writing and was signed by C, dated 10 November 2011. She explained that she would have talked to him about it and explained what it was that he was being asked to sign and why. She confirmed that the answer to question 24 on the form was correct. The question was

“How far can you normally walk (including any short stops) before you feel severe discomfort?”

And the answer given is:

“20-30 metres”

She agreed that within the April 2011 covertly filmed footage the Claimant walked more than 20-30 metres in total, but she said that he did that with breaks and he sat down. She also said that was just one occasion but she did concede that with hindsight she ought to have given her answer as 40-60 metres rather than 20-30 and indeed it is clear from the form that she did give the greater distance further down on that same page in answer to question 26:

“Please tick the box that best describes your walking speed”

where the answer

“slow 40-60 metres a minute”

She said that he was not in severe discomfort on the day of the covert footage. She also said that at the time that she filled in this form she was running a business, coping with a mentally unstable person and by this time she was on medication herself and she apologised for making the error of stating 20-30 metres being the distance that the Claimant could walk without feeling severe discomfort. She was tested on this explanation and concession of an error and it was at this point that she denied she wanted the DWP to have it “hot and strong”.

Mrs Connor was then asked about the second occasion when her husband had wandered off for hours. She agreed that he was found near a brickworks and he had been missing for some hours. A search involving a helicopter and police dogs had been carried out and she didn’t ask him how he had got there because at that time nobody could communicate with him. Later she asked him and he answered that he didn’t know. At most she got snippets of information over months or years. She said that most of the next day he was in bed or in his pyjamas in a distressed state. She agreed that if he had walked to where he was found the distance was far further than she had stated he was capable of on the DWP form. She repeated her evidence that he was in a stressed stated and she could not get any sense out of him but she didn’t continue to question him she was simply relieved that he had been found. That day they got home between 10.30pm and midnight.

She was taken to a note made at the hospital. The “Presenting Problems” were as follows:

“Brought in by police on Section 136. George lives at home with wife. Following an industrial accident five years ago he has needed constant care and presence of someone else. Today he left the farmhouse without telling his wife – carer and went for a walk. Wife became worried and called the police who sent out dog to find him… He was found in bramble bush lying down. Police say … that on finding him he picked up a piece of glass and stick as if to cut himself so they released the dog to stop this happening.

George tells me he left the house today as he was feeling very stressed and overwhelmed. He says that this happens frequently following his brain injury. He says that he laid down in the bramble bush to think and then when he saw the dog he became scared and thought it was going to attack him and so he picked up a piece of glass and stick to defend himself. George denies any attempt at self harm or suicide intent. He says that his mood is 5/10. His wife says that he has been in a strange mood all day but this happens quite often. She was unsure if he would have tried to harm himself. George and his wife both inform me that he is very frustrated with his mental impairment following the accident and the limits to his quality of life. He has never had any psychological therapy for this.”

Mr Rawlinson QC contrasted this account with C’s presentation to Dr. Majeed referred to above. The witness was also asked about the section in the records headed “Mental State Examination” but she was not present during this examination and could not comment on his presentation to the person who made that record or what he had said. The record is:

“Appropriately dressed Caucasian man. Speech was childlike in nature but of normal rate tone and content. Subjectively he rated his mood as 5/10 and objectively he was euthymic. No abnormal thoughts…. Patient reports visual hallucinations of his dead dad and horse. He says that he likes seeing them and chats to them about his concerns and worries. They don’t tell him to do anything but just listen to him. Orientated in time, place and person. George had good insight into his condition as a result of the brain injury.”

The mention of ‘brain injury’ in this record is instructive as it appears to have come from C himself and was made after he must have been told he did not have a brain injury, if this was not intentionally misleading (which is not alleged) it goes to illustrate his troubled and confused state of mind.

Mrs Connor was asked about the move to France on 30 March 2014, to a small village near Limoges called Pageas. They registered with a local doctor, Dr. Paziault, who recorded the following in a letter dated Wednesday 22 October 2014:

“I met Mr George Connor accompanied by his wife at a consultation on 22 September 2014. The situation was virtually incomprehensible. Mrs Connor had no medical information explained to me that the only letter she had from Manchester had been entrusted to you (it was not entirely clear who the letter was addressed to). I am not even in a position therefore to contact the Manchester again to try and recover a report. In the end I was limited to your document: severe anoxia in February 2010 in the workplace linked to chemical poisoning?

I have never seen any picture following a cerebral anoxia such as the one Mr Connor presented with. He was unable to sit in the waiting room next to other patients; he had to be out in an individual room. I was not able to approach him, or touch him. I have no contact with him during the consultation. He only reacted when my mobile phone vibrated making a reference to my mobile phone and his one. His wife did not speak French, had no clear question, showed me a photo of Mr Connor before that anoxia to explain to me that nothing was the same anymore. I believed I understood that they had settled in France only since April 2014 buying 19 hectares with six lakes and developing a fishing business?”

The witness agreed that the French property the couple bought does have six lakes, three of them with licences but not in working order. She agreed that they had the equivalent of 47 acres of land but she had no difficulty maintaining and managing it. C doesn’t do anything to assist but local farmers have helped them. The witness was also asked about mention in the letter of Sodium Valproate and whether it was prescribed for C’s ‘blackouts’ but she said he had always been prescribed it since the work accident in 2010 and she did not know why. In 10 June 2015 C had been found to be at least 80% disabled following an assessment concerning disablement benefits in France and his ability to work was estimated from the same assessment as less than 5%.

Against this recent background Mrs Connor was reminded of the 14 and 15 May 2015 C covert filming and she agreed he was capable of the physical movement shown and also of engaging in conversation. He was able to get into a tractor cab, receive and follow instructions about how to join parts of a hosepipe, but she said that the friend whose yard this activity had been filmed in would have remained close to him even if he was out of camera-shot.

She also agreed that on 15 May he was able to walk from his car, parked on the pavement near a pizzeria, to the restaurant and back but she denied that this level of activity surprised her. She said it was consistent with what he could achieve on a good day in circumstances where he was with people he could trust and knew well and not in a stressful environment.

She denied that any of the footage showed him acting as a banksman and operating machinery: he was under instruction at all times. Going back a little in time she agreed that in 2012 he did learn to ride again 2½ years or so after the work accident and he rode 29 times between September 2012 and March 2013. She said he did so with the assistance of a horse brace and that the riding was reasonably energetic including being able to go over a fence but she maintained that he did not have good balance.

Counsel for the 2^nd Defendant had put to her again that in light of this evidence (about the covert footage and horse-riding) her description of her husband’s abilities changed markedly from one day to the next but she disagreed and said that they had had to do rehabilitation over the years. This included moving from him wearing slip on shoes to learning to tie his shoelaces again and she continues to rehabilitate him.

She was asked when he had first behaved in an odd manner and she said it was in hospital during his first admission in January 2010. The main odd behaviour then was that he clung on to his iPod as a child would do to a comforter. When he came home from hospital after that initial in-patient stay he was very disorientated. This was demonstrated by his fear, clinging onto his possessions, fearing going from room to room, fear of steam from the kettle and childlike behaviour for example sitting on the floor shaking and rocking. In light of that evidence, which is consistent with her witness statement of June 2012, she was referred to C’s statement dated 10 May 2010. She was asked to explain how the statement came to be made. She said her husband’s statement was taken by a solicitor who took several visits to compile it. She used the phrase “it was extracted from him”. She was present and the solicitor took time to familiarise herself with C. He would say something and then talk into his hands, then repeat words and mumble. He would lose concentration and then look out of the window. She did not recall having to correct him over the details she had knowledge of so she was taken to the wording of paragraph 25:

“On the 12/2/2010 I began to suffer mentally from the effect of the accident…”

She did not know how that date came to be in the statement. The date was a mistake. She didn’t think she had read over the statement before her husband signed it. It is plain to me that wherever the date came from becoming aware of suffering mentally and exhibiting signs of mental disability are not the same thing. In my judgement these matters are not, as suggested by the Defence, a significant discrepancy.

She was asked about C’s account of the 10 February visit to Bolton Hospital and she said they were at the hospital for about seven hours. She did not remember seeing a Consultant called Mr Kevin Jones who assessed C’s lung capacity and she didn’t remember either what he did or what he said about it. She did not remember if it was on that visit that C was sent home with steroids and inhalers. She agreed that the record of the visit did not refer to him being distressed, indeed the presenting complaint is of “shortness of breath” but she said he was always distressed with every doctor and hospital visit.

Her attention was directed to the nursing assessment which was part of the record of that date. In particular:

There is also a space for an abbreviated mental test but that has not been filled in and in hand writing it is written “Not assessed, no concerns”. On the face of it this is surprising given the deterioration in C’s mental state that his wife recalls but it must be remembered that this was a nursing assessment rather than a diagnostic situation and at this time the GP was concerned about his evident shortness of breath and this was the reason for the referral from a clinical perspective. At this early point in the chronology C and his then partner must have hoped that solving the physical symptoms would deal with any mental aspects.

Mrs Connor was also asked about the specific assertions in C’s statement at paragraph 24 and the source of them. Paragraph 24 is set out in entirety earlier in this judgment and the witness remembered being told that it was highly likely that they could no longer keep animals but does not remember when and by whom that was said to her: only that it was early on and it was someone at a hospital during a conversation about that lifestyle and hobbies. Such suggestions once made, may well remain in the mind and gain a disproportionate importance. This was plainly significant news for them both and Mr Rawlinson QC asserted that no Chest expert would have said such things to the couple. I accept this point to some extent but again, the reality is that C and the witness were in the early stages of assessment and diagnosis at this time. C certainly had a debilitating chest complaint for which he was soon to be hospitalised again. It is not unlikely that someone, unidentified so far as the records show, speculated to one or both of them that various scenarios could be envisaged in the future depending on what medical examination and time revealed. It is also clear that medical notes made at this time did refer to asthma and reduced lung capacity, among other things.

At the time the witness said that they had five horses, three dogs and two cats. She looked after the horses and by the end of 2010 they had just the one horse. Later on she said that although they were told they may not be able to keep animals but they were never unable to. Now they have five horses again and many cats and dogs. The horses they have now are not show horses but they had them all by the time they moved to France having bought them by 2013 for both of them to use. One of the reasons was for the Claimant to use for hunting. These horses are never stabled like the show horses had to be and do not need daily training. They live in the fields and do not need daily involvement.

Mrs Connor was referred to C’s hospital admission for 22-26 February 2010. She agreed that there is no reference on record by medical staff to C behaving oddly while in hospital. It is common sense that a long term partner may notice what seems odd which may not be so apparent to a stranger even if a member of the medical staff.

She was taken back to the medical records for visits to the Claimants GP on 3 February 2010. Doctor Panja has noted

“Accident at work – exposed to welding fumes – went to hospital for five days. Came out of hospital with steroid course, finished two days ago. Feeling wheezy again.

Chest – Clear, no respiratory stress but coughing a lot…..? Bronchospasm – Re ex course of steroids and C1W (one week) contact if any deterioration.”

This is also true for the doctor’s records for the visit a week later on 10 February 2010. She agreed that C’s referral to hospital was for physical symptoms and she explained this by saying that she had prioritised his breathing. She thought that if they got that sorted out everything else would return to normal. For the sake of completeness the doctor’s record for 10 February is not extensive and includes the following

“Gases/fumes – toxic effect NOS.

Stopped steroids three days ago and very SOB (short of breath)…..?

Cause of SOB – needs further investigations.

Spoken to Dr Jones, RBH – will see.”

The first part of the Royal Bolton Hospital records for C’s visit on 10 February 2010 and the history completed in handwriting in the Emergency Department Medical Clerking Proforma was put to her:

“GP referral, shortness of breath since exposure to welding fumes.

Works at Castle Cement. Works as general maintenance…

22/1/10 exposed to welding fumes in an enclosed space. Subsequently had “sulphurous cough” became progressively more SOB on exertion over the subsequent week. Still managing to work. More and more SOB on exertion with worsening non productive cough.

29/1/10, further …exposure to welding fumes…. deterioration in SOB.

Admitted to Royal Blackburn for five days. Oxygen dependant for 5-7…..treated with Nebs (didn’t feel they helped) and steroids. After 5-7 course pred stopped – deteriorated with two days ….further 5-7 course steroids from GP …Improved.

Deteriorated again since steroids stopped. SOB on minimal exertion.”

The record continues with a brief note about the Claimants occupation, his hobbies and there is reference to running kennels and cattery, and to riding and showing horses.

Mrs Connor agreed that there were references in the records for 19 February to C’s psychiatric symptoms having started a week before that date (ie 12 February 2010). However throughout her cross-examination she maintained that C’s behaviour was noticeably unusual in hospital from his first admission and subsequently deteriorated.

Mr Rawlinson QC explored the couple’s financial status at the time of the accident but Mrs Connor was clear that there were no financial stresses before the accident and she showed Professor Maden (the Defence psychiatric expert) her Rolex watch, worth £85,000 at his interview with her because they didn’t have any financial problems. As far as selling the Pet Hotel, kennel and cattery business was concerned they had put the business up for sale in 2007 or 2008 and it was sold for £1.2 million pounds but the sale fell through. Thereafter the recession had begun and they had not sold it by 2010. She denied that they had been forced to sell it because of financial difficulties.

She agreed that the year end March 2008 the turnover was about £200,000. The next year it was about £54,000 and the following year £51,000. She agreed that over the three year period the amount of money they had been able to take out of the business by way of profit had reduced to £11,000 in 2009 and £11,400 in 2010. She denied that the business was failing and although the turnover had reduced this was due to the recession in 2008. The business was a holiday related business. She maintained that they were making money and they were not short of money. She agreed that in 2010 she had taken a business decision to have a six month mortgage break. She explained that she had never taken a mortgage break before. The mortgage was under £50,000 in total in addition to which she had various business loans which she consolidated into one loan in November 2010 but she maintained that the financial position of the business and the couple was not a stress factor.

Thereafter her attention was drawn to the letter written by Mr Simon Glover following attendance by him on 19 February 2010 and she agreed that he appeared to have made a mistake when he referred to the sale of C’s house in Bolton. She explained that there was a parcel of land which they had held onto and they sold that after the farm that they had had in that area was sold but this was in 2008 not since the C’s accident at work. She was asked about the passage under the heading formulation in Mr Glover’s letter but she said as far as she was concerned there was only one life event, namely the accident C suffered at work.

She said that C would have “periods of vacantness” in 2010, quite early on she thought, in spring. Later on he began to fall on the floor from standing or sitting but she couldn’t remember when that had first happened. ‘Late 2011’ sounded the right period to her. She said there was never any warning before the ‘blackouts’ happened and described one occasion when the Claimant had a blackout whilst climbing over a stile. It was plain from the way she dealt with these incidents that they came to be accepted by her and those who cared for C and treated as part of C’s presentation on an occasional basis rather than grave matters of serious concern. He never sustained physical injury and they happened when no one else was immediately present. They certainly represent a curious aspect of his condition and not one that the psychiatric experts have been able to understand satisfactorily but the fact that they occur is attested to by a number of witnesses.

Counsel for the 1^st Defendant asked a few further questions and established that C had been a farm labourer when they had met. He started riding horses in 2001 and the witness agreed that being told they could not keep animals would have come as a shock but it would not have been too much to bear; they would have had to change their lives.

In re-examination Mrs Connor said that she found coping with her husband extremely difficult but she kept it from him because she wanted to be strong and to keep his day to day life as calm as possible. She maintained that her husband’s former lifestyle had ended and that was a correct statement. He has not been able to scuba dive, they have not been on holiday abroad since the accident and he has not competed or shown horses. In respect of the care worker Emma Yankowski she explained that the care worker had made a number of visits to build up a rapport and trust with C before the entry that she had been referred to in cross examination. She said the photographs from Facebook show what C does with his hands, pulling them in and holding them together close to his chest crouching as he does so. She said that this is not normal. She finished her evidence by saying that in their partnership before the accident she had been the brains and he had been the brawn. She looked after the financial records aspect of their lives; he didn’t even open the post.

C’s brother Kevin Christopher Connor gave evidence. In his statement dated 20 November 2012 he described C as previously “the life and soul of the party”. He had seen C in hospital on 22 January 2010. He was conscious but incapable of speaking because of an oxygen mask he was wearing. When medical staff tried to remove the mask C became extremely agitated and gasping for breath. C was reassured and told that he was having a panic attack. On visits to the hospital during subsequent days the witness noticed that his brother had become slightly obsessive and unwilling to let go of his iPod. Once C was released from hospital his brother noticed that his behaviour was extremely childlike. He was nervous and uncomfortable when visited, even by his brother. C would repeat phrases obsessively too and complain of pain in his head.

Later on Kevin Connor observed C when he had hallucinations including of dead relatives. He was no longer the person he had been previously:

“He is a wreck. He is nervous. He frequently does not want to speak. He is anxious.”

In cross-examination he confirmed that C’s psychiatric symptoms were apparent ‘immediately’ by which he meant as soon as he got home from hospital. He was not himself, it was ‘a different George’. It for lasted a couple of years. Latterly there has been a slight change in him for the better.

He was sometimes able to persuade C to go to the local social club to play snooker but only once a month on a quiet night. It was 2-3 minutes’ drive from C’s home and someone would stay with him all the time. He could not remember when he was told that C would no longer be able to go near horses because of his breathing problems but he was told that by his brother or Rebecca. He did not know where the information came from but he believed it came from Blackburn Hospital.

Miss Yvette Tomlinson was called and adopted her statement of 16 March as her evidence. She and her husband had made kennel arrangements for their dogs using the Pet Hotel. She had met C on about twenty occasions there and echoing the description of other witnesses she said that he was

“…a very tall, big man with a big personality. He was very friendly and very chatty and was the life and soul of the Pet Hotel. In some ways he was a larger than life character.”

Following the accident in January 2010 the two couples became closer and she noticed how C had changed and although to someone who does not know him well he may appear to be normal his behaviour can change rapidly and he can become very scared and frightened of things very easily. She has also noticed his verbal tics such as repeating phrases such as “hello, hello”, something the Court experienced for itself when C was present on the television link at the trial. In some ways C’s behaviour is similar to that of an autistic child (the witness has an autistic niece). He has to be supervised constantly although by the date of her statement he had begun to do more. The impact of the accident is described as follows:

“He is extremely child-like in many ways, both in his behaviour and in relation to his reliance on Becky. He also has physical and verbal ticks (sic) now which he did not have before.”

In recent months his wife had taught C how to make coffee, it was a new skill for him. The witness formed the view that C has behavioural problems although he had both good and bad days. On good days he would be “relatively OK in the constrained and limited world that he is now living in, a bad day is where he is depressed and shows suicidal behaviours.” During questioning by Mr Rawlinson QC she was asked about the Holcombe Harriers Hunt Ball where she said in her statement C had gone to the lavatory and hadn’t gone back so that someone had to go and look for him. She said it was a black tie dinner dance. They were sat on round tables of 8-10 people. The evening focussed on C and what he could cope with – she felt as if she was on duty. He cannot necessarily keep up with normal conversation such as politics or what is on the news rather he wants to talk about what has been up to or the bird’s nest in the garden. He does not necessarily follow normal conversational rules by way of example he would react overtly to a mobile phone ringing and other unexpected noises.

She was asked what she meant when she said he showed suicidal behaviours and she said she believed he had tried to take his life when he disappeared. It is clear from other evidence that he had stated such an intention. C would sometimes talk to her and say that he felt a real burden to his wife and he wished he had died. She would now say he had suicidal thoughts rather than suicidal behaviours. When he spoke to him recently, (at the weekend before the trial) he was ‘not very good.’ He has lots of physical tics and he was presenting with them over the Skype call.

Jacqueline Irene Torrance was called. She adopted her statements dated 22 and 23 October 2015 as her evidence. In them she described knowing C and his wife for fifteen years or so from the time that they took over the Pet Hotel because she was employed as the receptionist at the veterinary practice they used. They were ordinary people but after the accident in 2010 C had difficulty coming through the double doors at the practice and appeared extremely anxious. He looked frightened and held his hands up to his face. His wife had to reassure him. The witness was also present on occasion in C’s stable yard when she had noticed him about to collapse and fall to the floor. Her husband took C fishing which he enjoyed. However, at a birthday party in a restaurant when a birthday cake with candles was brought out he became really agitated and he to be settled down by his wife. She described C’s anxious behaviour when visiting them in their new home in France; when a taxi came to take C to a medical appointment he became agitated. She too had experienced C repeating phrases such as “Becky, Becky, car, car” over and over again. She thought that C was aware of his condition and that it upset him.

During cross-examination she confirmed that she too has moved to France and now lives 20 minutes away from C and is now employed as a carer for him. When she is caring for him they spend time playing on his IPad or collect wood for the wood burner and she has taken him out for a drive. She was asked about when she had feared he was about to fall to the ground and she said the first time this happened he threw his head up and so she pushed him against the wall and called for help. They got him out of the stables and sat him down. He was then taken inside. The second time he was outside again and he went down but Rebecca got him to sit on a pair of steps. He did not lose consciousness on either occasion but she thought that if she had not been there he would have fallen to the ground. Once when he was sitting in a chair and she was speaking to him he stopped responding to her and seemed not to ‘be there.’

She is employed to care for him because he cannot be left alone. He could wander off. She did not think he would be able to work on a tractor for a whole day 9-5, which was a surprising suggestion. Working as a banksman, standing on the back of a trailer and then guiding a hook to fix to a load to be taken off the trailer is not something she has seen or that she would accept him to be capable of it.

Mr Alec Torrance had provided a statement in which he confirms that he took C fishing one day in early 2015 and he had to look after C on the trip. The two couples lived together while the Torrances made their own move to France and he confirmed that C cannot be left alone, he ‘goes into a world of his own’ and is at times disconnected, repeating phrases and becoming anxious about minor matters.

Mrs Alison Howarth was called and relied on her statement signed on 17 March 2014 as her evidence in chief. She had known C for four years and had been at school with Mrs Connor. She saw C after the accident and found him to be someone who was very anxious in unfamiliar company and she has come upon him from time to time when he has collapsed and is lying on the ground. She recalls one evening when he went out in the evening and it was necessary to go and look for him. He was found in a field collapsed on the floor. He was exhausted and distressed. Mrs Howarth speaks of Mrs Connor’s occasional desperation.

C’s situation has improved from the immediate aftermath of the accident, by the time of her statement he was able to venture out more and had gained in confidence but he was still very dependent on his wife and his behaviour is very childlike in many ways. He can ‘chatter’ and displays autism-type traits. She describes a similar anxiety about strangers as other witnesses. Her husband Michael Howarth confirmed her evidence and described how C can quickly regress without warning having given an earlier more ‘normal’ presentation. He is helpless and dependent on his wife for instructions. He is however, capable with his hands and can make furniture with his own hands.

In evidence Mrs Howarth described seeing C lying on the ground after he had collapsed between 2010 and 2014 but she had not actually seen him collapse, personally. These episodes drained him.

Kirsty Swierkowski was called and she relied on her statement dated 16^th March 2014 she worked as a carer for C between 2011 and 2013. She paints a similar picture as other witnesses: C is incapable of looking after himself and he is terrified of doing anything without his wife’s guidance. He has physical tics and twitches. It took time for him to trust her and feel comfortable in her presence. Over time he had been able to engage in more varied activities around the stables but he tired easily. She said that when he became used to her they were able to have conversation that was “normal for George” – it is clear that she did not mean normal generally. An example she gave of acting oddly was when he reacted inordinately to the smell of some furniture wipes when she got one out. They were attempting to make a chicken hutch as a project.

Like the other witnesses, she never actually experienced him collapsing but had found him collapsed in the time she was caring for him on 5-6 occasions. She did not see any frothing from his mouth though he might move jerkily. The jerking or twitching was the kind that he would normally display. She was not aware of him ever having injury such as bruising from the falls. When she found him he was unconscious – he would stay unconscious for some time, they would have to shake him and speak to him. He would be disorientated and confused when he did come round. Becky told her to be careful in case he thrashed out.

She did not call for an ambulance when he had such an episode even though she did not know how he had dropped to the ground and whether he had suffered injury. This was because they all took for granted that this was just how he was. He was never seen to collapse and as far as she could tell he didn’t know it was going to happen himself. He would go to bed for a few days after such an episode. She was not aware of his driving a tractor.

A number of other witnesses who had experience of C since his accident made statements which were relied on. It is not necessary to summarise their evidence specifically. The overall impact of their accounts was to confirm the clear disabilities that C is under according to those who have some contact with him. It is also apparent that many of them find his presentation inexplicable. He is able to ride a horse and do so proficiently although he was not able to canter well. The secretary of C’s local hunt described him as ‘a very ill man’ who is better on some days than others and how other members of the hunt would look out for C when he was able to ride with them. Many of the witnesses describe C’s ‘cowed’ or frightened behaviour especially when in the presence of someone unfamiliar or outside his ‘comfort zone’. Lawyers for C have also obtained statements from his French GP and neighbours who have seen him more recently since his removal to France. This in totality presents a persistent abnormal picture albeit it is clear that there are variations in the presentation of C’s mental health: the overall picture is of someone whose personal and social life has been devastated. Significantly, no one at all, whether a social friend, family member or professional contact has suggested that C has feigned his symptoms or is exaggerating them deliberately.

During the course of detailed case management hearing directions were given for the provision of expert evidence. When the issues of liability were live the Court directed evidence in the fields of engineering and chemical/occupational health and these experts met where directed and C also obtained reports from an expert chemist and thereafter the Defendants also obtained equivalent evidence. I have heard from none of them. The Court also made directions in respect of medical experts in the fields of respiratory medicine, psychiatry and neurology. Again in light of the limited issues remaining in this preliminary trial the expert report of Doctor Barber in relation to respiratory injury and Doctor Moore-Gillan for the Defendants on that topic did not play any significant role in this trial.

A neuro-psychologist Dr June Robson reported on 19October 2010 for the purposes of rehabilitation rather than as a Part 35 medico-legal report. Dr Sambrook a neurologist provided a report dated 23 February 2011. The content of these reports are not directly relevant to the issue before the Court.

The starting point for consideration of the psychiatric evidence is the helpful joint expert’s report prepared after discussions between Dr Hyde, and Professor Maden. It is dated 8 December 2015. Both experts have seen C: Dr Hyde saw him over the course of a longer period of time than Professor Maden. Dr Hyde first saw C on 22 October 2010 and against on 9 May 2014. He has provided four reports dated 24 November 2010, 19 September 2011, 23 June 2014 and 12 October 2014. Professor Maden saw C on 12 May 2014 and has prepared a report dated 17 July 2014 with a supplementary on 24 September 2014. Some of the contents of the individual reports and the joint report are not directly relevant to this trial because they concern matters of prognosis, whether any psychiatric disorder persists and how long it persisted for. As noted previously, the protracted history of these proceedings and the late admissions by the Defendants have meant that the Court is concerned with only a very narrow issue despite the need for evidence to be called upon it from those who may need to be recalled in the future for other, including those matters listed in the previous sentence. The Court offered to expand the matters to be determined at this trial however, the parties were clear that they are seeking further evidence and are not in a position to present issues beyond that already set out, to me at this time.

In their Joint Psychiatric Statement the two psychiatric experts Dr Hyde and Professor Maden state that they recognise that this is a complex case. Dealing with the Agenda the following questions and answers are relevant to this trial:

The remaining questions and answers are not relevant to this trial concerned as they are with causation and prognosis.

The evidence of the psychiatrists was central to this trial. Dr Clive Edward Hyde MB ChB DPM FRCPsych MD is a well-established Consultant in Adult Psychiatry who has provided expert evidence to courts since 1981. He has seen C twice for examination and has also observed him prior to examination e.g. when he has attended for case conferences. Not many of the issues he was asked to deal with in his first report in 2010 remain live or for determination in this trial. The list of topics is at page 2 of his report and the first listed there is “The nature and extent of this gentleman’s psychiatric injuries”. He found the interview with C difficult due to C’s behaviour but he gained C’s attention and confidence and was given a history of the accident and the changes C had experienced since then. The following appears under Mental State Examination

“When seen today he behaved in some very unusual ways. He would sit with his head nodding, shaking his head from side to side, adopting a head down posture, with his chin on his chest, lip smacking, tutting, repeating things other people had said such as his wife (echolalia). When he walked up the stairs to my room he then stood in the corner of the room tutting to himself. He avoided my gaze, he would stare into corners of the room with long pauses following which he would complain of a smell of soot. He would take his mobile phone out and smack it and had spells of picking at his clothing (carphologia). He was very circumstantial in his thought processes and on one occasion insisted on drawing what had happened in the cyclone accompanied by constant muttering and lip smacking.

In my clinical experience I have only seen this sort of behaviour in autistic individuals in certain kinds of rare organic front lobe injury and in a much deteriorated chronic schizophrenics”

Dr Hyde’s initial report provided a provisional differential diagnosis dependent upon the outcome of the neurological and neuropsychological investigations into whether there was an organic explanation for C’s condition:

“ 82. It should also be said that this gentleman’s presentation is most unusual and bizarre in its form. However, I would put forward two alternative differential diagnoses in this case. These comprise:

i.

FO6.9 Unspecified Mental Disorder due to brain damage and dysfunction and to physical disease. The FO6 group in the Tenth International Classification of Diseases….which is the diagnostic system used in all British…hospitals, includes miscellaneous conditions causally related to brain disorder due to primary cerebral disease, to systematic disease affecting the brain secondarily, to exogenous toxic substances or hormones, to endocrine disorder and to other somatic illnesses….(diagnostic criteria for research set out)..

This particular case seems to involve several different symptom complexes and is, therefore, not easily placeable in one of the classical types of organic brain disorders such as …… This gentleman certainly reports hallucinations and some memory difficulties, stereotyped behaviours, anxiety symptoms and delusional beliefs that others are out to get him. However, no single symptom element dominates the picture and hence ‘unspecified’ mental disorder due to brain damage and dysfunction and to physical disease category must be used.

The weakness with this diagnosis is of course the failure so far to demonstrate organic brain damage, apart from at a symptom level and I would welcome (further tests).

ii The other alternative diagnosis really formulates this case as a response to stress as well as physical problems with a diagnosis of Elaboration of Physical Symptoms for Psychological Reason, coded F68.0 in the Tenth ICD. In this group physical symptoms compatible with and originally due to a confirmed physical disorder, disease or disability become exaggerated or prolonged due to the psychological state of the patient. The patient is commonly distressed by this pain or disability and is often preoccupied with worries which may be justified and the possibility of prolonged or progressive disability or pain. It includes compensation neurosis. It is noted that dissatisfaction with the result of treatment or investigations or disappointment with the amounts of personal attention received in wards and clinics may be a motivating factor. Some cases appear to be clearly motivated by the possibility of financial compensation following accident or injuries but the syndrome does not necessarily resolve rapidly, even after successful litigation. ….(diagnostic criteria for research set out)..”

In providing a range of opinions as required he states that the only other alternative diagnosis he would consider would be the possibility that C was in a consciously simulated or malingered state. He did not think there was sufficient evidence to allow a diagnosis of malingering.

In respect of that report Mr Rawlinson QC asked Dr Hyde about a cognitive functioning test called the Folstein and Folstein Mini Mental State Test, a short test lasting 10-15 minutes most of which C was able to complete in one go. Dr Hyde agreed that it is possible to be entirely devoid of any psychiatric condition and yet drop some points on the test. Most of us would score 24. It would also be possible to deliberately simulate a lower score. He scored just above the normal level which was not evidence of a grossly impaired degree of cognitive functioning.

He was taken to paragraph 82 (supra) and asked about his use of the word ‘bizarre’. He said he was using it to describe behaviours he had not come across – ‘a very unusual presentation.’ He had seen it no more than two or three times before. It is vanishingly rare in his experience. He had seen it in autistic children or where there is brain damage or severe burnt out cri-schizophrenia. He expressed his conclusion as C’s condition being an atypical example of Pseudodementia. C does not have gross global dementia but has highly unusual bodily movements but whether he had control over them is not clear. Dr Hyde agreed that even had there been any organic brain damage this presentation was an imperfect and unusual fit.

Dr Hyde’s second report was dated 19 September 2011 and was not based on a fresh examination of C. He had been provided with a neurological report, a report from a Respiratory Physician, a Consultant Engineer and a Consultant Chemist. In addition he had received letters from Dr Allen which he had not previously had. He considered Dr Sambrook, the neurologist’s view that the symptoms are not organic in origin but flowed from a disorganisation of C’s thoughts. CT and MR imaging did not rule out brain injury entirely but Dr Sambrook concluded that C’s clinical presentation was due to a psychological/psychiatric disorder rather than brain damage. Dr Hyde was asked about the reports of blackouts and he said he did not really take that on board as being germane at that time. He was able to rule out a neurological cause.

He had another meeting with C on 9 May 2014 and provided a report dated 23 June 2014. The following summary was provided at the start of the report

“My diagnostic view on this Claimant has become more definite with the ruling out of organic disease and the development of chronicity and an established symptom pattern. I think he should be regarded as a Hysterical Pseudodementia with a differential diagnosis of consciously simulated dementia. A period of impatient observation and investigation could attempt to differentiate the two, assisted if possible by techniques of abreaction, hypnotic suggestion and psychometrics. Treatment would include graded activities, re-socialisation, occupation and social therapies. Given the chronicity of symptoms, failure to previously engage in treatments and compensation issues the prognosis is poor.”

He observed later in the report that availability of beds in the National Health Service for such in-patient assessment and treatment was poor. He had been provided with a number of witness statements from civilian witnesses who had experienced C’s behaviours, some of whom have been mentioned above. He reported a Differential Diagnosis

“Given the floridity of his signs and symptoms and their duration, approximately 4 ½ years, it is necessary to change my preferred diagnosis simply to encompass the continuing chronicity and now organic brain disease seems to have been ruled out, to that of the Dissociative Disorder, coded F44 ..(ICD)

The common themes that are shared by Dissociative or Conversion Disorders are a partial or complete loss of normal integration between memories of the past, awareness of identity and immediate sensations and control bodily movements. All types of Dissociative Disorders tend to remit after a few weeks or months, particularly if their onset is associated with a traumatic life event. More chronologic disorders particularly of paralysis and anaesthesias may develop if the onset is associated with insoluble problems or interpersonal difficulties. These disorders have previously been classified as various types of Conversion Hysteria. They are presumed to be psychogenic in origin being associated clearly in time with traumatic events insoluble and intolerable profiles. Diagnostic notes in ICD… note that there must be no evidence of a physical disorder that can explain the characteristic symptoms of this disorder (although physical disorders may be present that given rise to other symptoms) and that there are convincing associations in time during the onset of symptoms of the disorder in stressful events, problems or needs.”

Having briefly mentioned malingering as ‘persons feigning illness with obvious motivation’ coded under F76.5 in ICD Dr Hyde went to on to state that the best diagnostic category for C would be

“Hystercial Pseudodementia coded F44.8 which also includes psychogenic confusion and twilight states and Garner Syndrome. The best descriptions are given in Organic Psychiatry, Lishman Third edition 1998….”

From where Dr Hyde then quotes at length. In his Prognosis he notes that

“There is some hope that when the compensation is settled he may improve but a proportion of cases do not and seem to continue in a neurotic invalid role in the longer term with dependency upon carers and partners.”

Before attending Court he had been provided with a summary of the evidence heard in the trial in the days preceding his appearance as a witness.

He was asked about his examination of C and Dr Hyde said that he did not get an impression of conscious awareness as Professor Maden described. C’s speech was very difficult to extract and the verbigeration (repeated expression of phrases such as ‘Not lately, not lately, not lately’ and ‘Can I fly then, can I fly then) made it hard to communicate’.

When asked about the relevance of blackouts he said he thought it was another psychiatric symptom, organic causes having been ruled out by Dr Sambrook. This was necessarily a diagnosis by process of exclusion. Asked whether it would have concerned him that these blackouts were emerging just before his investigation in 2014 he said he believed they had already developed and were mentioned in a previous report and he saw what was reported to him as part of a phase of the developing picture/syndrome referable back to the originating event whatever, that had been. He was referring to a comment from Dr Sambrook in August 2011 where he stated that a care-worker had observed a blackout. In hindsight Dr Hyde said that he thought he should have taken a fuller history in this respect.

Dr Hyde was taken through Rebecca Connor’s statement of 2012 which did not mention blackouts and said there has been no change in C’s condition. Dr Hyde said that a condition can be established (as Mrs Connor described) but some changes still take place over a slow, longer time period. He maintained his attribution of the blackouts to the condition.

According to Dr Hyde the ‘wandering off incidents’ in June 2011 and March 2013 were episodes of hysterical fugue states: Dr Hyde and Professor Maden had described C as having had fugue states in their joint report. After such an episode Dr Hyde said he would expect at least partial amnesia. In that context he was asked about the account given to medical staff after one of these episodes on 31 March 2013 which is set out earlier. That account suggested to Dr Hyde that it was more likely to have been a depressive fugue state rather than a hysterical fugue state. He was asked what role compensation and reward, which he considered to be highly likely to play a role in C’s chronic state, are playing (unconsciously). He said they were a positive reinforcement.

A section from a more up to date version of the text book he had cited in his report, Lishman’s 4^th edition from March 2013 was introduced. It was put to Dr Hyde that the relative lack of attention paid to his diagnosis in the latest edition undermined his diagnosis, but he said that the extract concerned patients presenting to a memory clinic who were not really the same group that C belongs to. He agreed that pseudo-dementia is a concept used rarely these days and explained that a reason he had quoted from the 3^rd edition of Lishman’s Organic Psychiatry because it was better for giving a good definition of the condition. When asked why he thought that Lishman now failed gave less prominence to Pseudodementia than in previous editions he said that he did not think that any expert in Pseudodementia was asked to contribute a full chapter to this textbook so the apparent reduction in attention to the condition Pseudodementia in the 4^th edition could be explained in that way. I am quite satisfied that the evidence of both psychiatrists is that pseudo-dementia still remains although it is rare and unusual.

Dr Hyde distinguished between Ganser’s Syndrome and C’s condition on the basis that Ganser’s may be the more acute end of the condition and Pseudodementia is more chronic.

Dr Hyde was cross examined about the impact of various economic conditions which he agree could be a contributing factor. A distribution between different causative features could be attempted if he was given all the information.

His fourth report was provided by 12 October 2014 after he had been provided with the report of Professor Maden. He analysed Professor Maden’s report and his references to the 4^th edition of the Lishman textbook.

His final report, before the joint experts’ report is dated 2 October 2015 and it follows the provision of a large quantity of relevant documentation in the case. Dr Hyde referred to much of the material including witness statements and updated Health and Social Services records, accounts for C’s business, the updated opinion of Professor Maden and accounts of C riding in hunts. He concludes

“I think one has to take this period of time as a whole and see it as a frightening and stressful life event for him, which acted as a seed-core for the onset of his conditions.”

His opinion remained that C presented as an unusual case and he accepted Professor Maden’s concern that disorientation, which is generally regarded as part of the dementia and Pseudodementia ‘picture’ is missing, however, Pseudodementia was the ‘best fit diagnosis’.

Mr Rawlinson QC asked the expert about some of the behaviour C was capable of which it was suggested was incompatible with the diagnosis Dr Hyde had reached. He agreed that riding is often used as a therapy for those with mental difficulties and so was not surprised C’s wife had tried to get him back to riding and not see it as inconsistent. Such matters as regular riding and taking part in hunts depends on the degree of involvement in such – C could not manage the galloping and quality of riding as he had previously. The same applies for the impact of his attendance at parties and the like. If he was the doyenne of the party that would be one thing, going with the support of his wife was something different.

He was surprised to see C driving a tractor for part of the day. This indicates improvement but not necessarily as inconsistent with the diagnosis of Pseudodementia, e.g. he is not seen driving on public highway. The footage shows a man who has a degree of normalisation but there is supervision, ongoing contact via mobile phones/talkie and socialising among a group of people. Dr Hyde did not accept that this was wholly inconsistent with the chronic Pseudodementia or that it negated the diagnosis. He allowed that it did show he had improved considerably since he moved to France (in respect of what he could do) but that does not mean that in certain circumstances and stresses would not cause him to revert. Dr Hyde was pressed and agreed that C may be consciously simulating now either in part or in whole but it does not negate that his diagnosis was correct for the previous condition C had.

Dr Hyde recognised that there have been observable changes in C which showed that at least some areas of functioning had improved and he accepted that there would be a discrepancy between these and Mrs Connor’s evidence if she were to say there has been no improvement at all.

Dr Hyde agreed that for there to be an elaboration of physical symptoms (one aspect of his diagnosis of Pseudodementia in C’s unusual case) there had to be present physical symptoms. He was asked to deal with the following position: if the Court was persuaded that the physical symptoms arising from the exposure to fumes in January 2010 exhausted themselves by a date after admission and C’s psychiatric symptoms did not follow until after a gap could there be any elaboration of physical symptoms? Dr Hyde dismissed the need for contemporaneity: the physical symptoms would have provided a seed-core for the development of the psychiatric symptoms. The seed core theory relied on there being some physical symptoms at some time prior to the psychiatric manifestations. An individual would start the process of elaboration and that would continue even if the physical symptoms had died down.

He confirmed that at the joint experts meeting both he and Professor Maden agreed that if the Court accepted C’s presentation then there was a psychiatric diagnosis, on balance.

He was asked about the notes of the 10February 2010 and whether if psychiatric symptoms had started only on 12February the two days gap would be determinative of causation. He did not agree with that proposition: ongoing health anxiety particular if accompanied by medical intervention and investigation such as on 10 February and subsequently could act as a reinforcer could be cognitive elements, physical elements or emotional elements.

He was taken to C’s statement for the start of his mental symptoms but Dr Hyde maintained that there was not much of a gap and even if the dire warnings from the hospital were not true there were a cluster of things which raised C’s anxiety and depression from 22January 2010 and that cluster would have been sufficient to produce the mood change and worry that led to the elaboration. Asked what he meant by cluster he said that the cluster consisted of a number of things, including; events in the cyclone, especially on the last day when he was in such a state that he was taken to hospital and then transferred to another hospital, then persistent symptoms, uncertainty of diagnosis, then events at Blackburn hospital in a confused and disturbed state and the developments that occurred then. All these would act on him. He’d be worried about his bodily health and the possibility of illness and disease. Although it would be surprising to find no record of psychological symptoms, that would depend on what the physicians were doing and the ability of those physicians to record psychological symptoms. They all tend to focus on the problem in front of them – this is even so when boxes are ticked denying such symptoms.

His opinion is that if the chest physicians are right then the respiratory condition resolved by 26January but C complained of problems with his chest on 3 and 10February. C may not have realised he had psychiatric problems when he was physically ill. Dr Hyde had not dealt with the chronology as to when the psychiatric symptoms started in C’s statement in any of his reports because he took the view that this was part of a cluster of events and a ‘pathway’ of psychiatric symptoms following on from physical impact.

He was asked whether the reference to elaboration in his first report accounted for all the symptoms C had displayed and he said it did not, as time went along, and in any event it was just an initial working provisional diagnosis and had been changed to a more complex form of elaboration namely, Pseudodementia.

He agreed that the diagnosis in his third report comes with significant caveats. The symptoms C displays which are typical of Pseudodementia are: disorientation (in the early stages), confusion, hysterical phenomenon, short term and other memory problems, psychological results which are abnormal and he shows unusual neurological symptoms (in a descriptive sense). However, his condition has not mitigated after a few weeks (which the definition in ICD 10^th edition would indicate for the diagnosis at F44), it has not arisen (one one view) from life changing events and C has not failed cognitive tests or been shown to be highly suggestive. The inpatient admission he had previously suggested may have served to confirm the diagnosis of hysterical Pseudodementia but it has not taken place.

Finally he confirmed that in relation to the two central issues – whether a psychiatric condition was present in C and whether it was caused by the work accident, his conclusions have not changed.

The Defence instructed Emeritus Professor of Forensic Psychiatry at Imperial College, Professor Maden in July 2014. Like Dr Hyde he is a very highly experienced Consultant, with a broad clinical and managerial background. He has been instructed to prepare psychiatric reports for Court for the past 15 years. His report of 17July 2014 is short and he explained in evidence that this was because although he saw C for two hours he ‘got very little out’ of him. Most of the information he gained at the consultation came from C’s wife. He prepared a supplementary report dated 24 September 2014.

In July 2014 Professor Maden was not able to offer a definitive prognosis because he considered that C’s symptoms were not explicable in medical terms and that psychological treatment was unlikely to help. This was due to the highly unusual nature of the case, in particular the bizarre nature of the symptoms and the inconsistency and variability in presentation. In his view the only likely disorders were F68.0 in ICD 10 elaboration of physical symptoms for psychological reasons or F68.1, intentional production or feigning of symptoms of disabilities either physical or psychological (factitious disorder). He rejected the possibility of a dissociative (conversion) disorder because of the variability of signs and symptoms in different settings.

He also formed the ‘inescapable conclusion’ that the variability of the signs and symptoms was so great that there is probably at least some deliberate elaboration or feigning of symptoms on the part of C. He concluded that factors other than the work accident had placed C under stress and that the need, as it appeared, to sell the business and debts the couple had, posed more long term threats than the impact of the accident itself.

He opined that there should be ‘considerable improvement once the litigation concludes.’ In September he reported his opinion having seen Dr Hyde’s report of 23 June. He returned to the question of conscious malingering and pointed out that the difference between his and Dr Hyde’s views on this topic hinged on their differing assessment of inconsistency or variation in C’s presentation. He accepted that hysterical Pseudodementia was a possible differential diagnosis but rejected it firmly in C’s case because Dr Hyde’s testing had showed C was cognitively intact. He also raised the reliability of C’s wife as an accurate historian of his symptoms.

He said that within a very short time of meeting C he formed the opinion that his condition cannot be derived from an organic cause. He was uncertain of the nature of the so-called blackouts: he had not seen a good account of the transition from consciousness to unconsciousness, or of any accompanying seizure activity. A striking and odd feature was the failure to summon any medical help. He considered that to be abnormal behaviour by those who would e.g. find C unconscious on a concrete floor. He had listened to the witness evidence at trial and still had no opinion as to what those episodes are: the most significant feature is the way that he and those around him have responded to them.

Although in the joint report Professor Maden had agreed that there were apparent fugue states in C’s presentation now, having heard the evidence that C was able to give an account of what had happened to him and what the reasons were for what he did, the witness did not think that the second incident was a fugue state at all. It was certainly not a depressive fugue, as Dr Hyde had speculated because if the Mental Health team had suspected C was clinically depressed they would have done something about it. It was typical of his presentation, “there are bits of one recognised pattern of mental disorder then bits of another but it never crystallises into one diagnosable such disorder”.

He and Dr Hyde had agreed that, in the absence of neurological explanation all the symptoms are psychiatric, but Professor Maden considered it to be an odd question (although he did not say so in the report). He explained that if something is not physical/neurological then it must be psychiatric. He stated that his opinion is (and implied that it had always been) that this does not mean it represents an established psychiatric disorder.

If the Court accepts the symptoms are genuine then the only category is the rag-bag category of a disassociate Pseudodementia – F44.8.8 ICD 10. There is no physical proof that the diagnosis applies. Professor Maden made clear that his was “a diagnosis of last resort, an exclusion diagnosis”. He had never treated anyone for it because it is an odd condition devised as a category of exclusion and the condition tends to remit within a very short period of time anyway. He agreed that there are factors that could cause the Pseudodementia to continue i.e. which act as a perpetuating and exacerbating condition. The on-going litigation was an important perpetuating fact. The fact that these symptoms persist is not understandable in the absence of some perpetuating factors. Other potential precipitating features could be financial stresses – but the witness wanted the Court to understand that he cannot explain the symptoms.

He also had no explanation for such things as the health related beliefs which were not based, apparently on any medical diagnosis communicated to C. The beliefs he meant were such as those in paragraph 24 of C’s witness statement including that his lung capacity had been reduced, there was damage to the lining of his lungs, his heart had been placed under strain, that at best he would be left a severe asthmatic. These health beliefs would make more sense as a precipitating cause for mental health problems albeit not these symptoms. If C was told of and/or believed this was the potential impact of the exposure on his health then this would be a significant factor in leading to a stress related condition. They were bound to influence his psyche. He was struck by how quickly C had adopted a sick and disabled role.

Both the gap between the respiratory incident and observation of psychiatric symptoms and the fact that when he was re-admitted to hospital he was clearly hyper-ventilating but showed nothing to suggest a high level of psychological trauma at the same time. It was not Professor Maden’s view that C suffers from any recognised psychiatric disorder.

At the end of three days of evidence Mr Rawlinson QC on behalf of all three Defendants re-stated their position that I had only to decide the issue of the proof of a recognisable psychiatric condition. The Defence did not seek a finding of conscious exaggeration or feigning but in seeking to challenge C’s case relied on what he called ‘a chaotic melange of evidence’, in particular the alleged

Even where psychiatric symptoms were clearly documented in February 2010 I was asked to project backwards to that point based on i) to iv) above and reject Dr Hyde’s diagnosis of hysterical Pseudodementia with which Professor Maden had agreed to a limited extent in the joint expert’s report.

The court is asked to answer a discrete question, six years after the accident at work for which the Defendants have admitted responsibility. My firm conclusion is that soon after the work accident, so soon after as to have no impact on causation, should that have been a live issue, C genuinely suffered psychiatric symptoms which were noticed by his wife (principally) and thereafter notified to a number of medical professionals, some of whom sought to diagnose their origin and nature. While neurological and physical causes have been ruled out a recognised psychiatric disorder has been accurately diagnosed.

As set out in paragraph 125 above I find C’s statement that his mental suffering began on 12 February is not determinative of when he suffered psychiatric injury which was apparent to Rebecca Connor even if not to C himself. I am not required to consider duration but having heard the evidence I would be satisfied that the condition persists, albeit with less severity.

I find Rebecca Connor to be a reliable and accurate witness in most respects and I do not find that she had any motivation to deliberately lie or exaggerate C’s mental ill-health at any point in the history. I also find that in maintaining that C’s condition has not changed over time she is referring to his personality and the profound change he has undergone from his pre-accident condition rather than his ability to engage with life to a greater or lesser extent. She makes clear that one of the reasons for moving to France was that C had enjoyed his holiday there with her son. It is obvious from the video footage that C is physically able to do things which he had done before the accident but he is not able to do so autonomously. I make clear that I have considered the DVD evidence with care, not in order to stray into areas the parties do not wish me to resolve, but in order to complete my assessment of Mrs Connor as a sufficiently reliable rapporteur for me to decide facts.

I have no doubt that in the immediate aftermath of the industrial accident in January 2010 she was very worried about the effects of the cumulative inhalation of fumes on her husband. I accept her evidence (and that of his brother) that C was acting oddly during his first admission to hospital in January 2010. I accept that he never recovered and there was deterioration in February 2010. I do not accept that such matters as; being a severe asthmatic, not being able to keep pets, having a gravely reduced lung function and injury to his heart or brain, were the product of C or his wife’s imagination.

I accept that she genuinely believed as did C that there was a decrease in his lung capacity leading to the shortness of breath he experienced in February 2010. I also accept that they believed at an early stage that C might become asthmatic and might not be able to keep animals. It is clear from the medical records that medical personnel raised the possibility of brain damage to account for the bizarre behaviour exhibited by C. These factors are likely to have had the negative impact on C’s already damaged psyche as Professor Maden accepted. The subsequent ruling out of these conditions (reduced lung function and brain damage) is probably unlikely to have made the equivalent opposite impact because C’s mental health had been affected and he had developed the hysterical Pseudodementia.

I do accept that Mrs Connor has, from time to time, passed on information to others which she must have known was not any longer correct. Two examples are in applications for benefits in October 2010 and November 2011 when she referred to lung damage. These are unsatisfactory assertions in claim forms and were not clearly explained by Mrs Connor in evidence. I am not persuaded however, that she included this information with any malicious or dishonest intent and (as already noted) lung damage was investigated at one time. While this is unreliable reporting to an authority I am not persuaded that such unreliability pervades the majority of her evidence.

It is clear from the documentation that lung damage was suspected at one time and this will have been a frightening idea for C to absorb. In particular I found Mrs Connor’s account of having to care for C, to nurture, rehabilitate and direct him, compelling. The change in her husband’s abilities, his failure to recover, his unexpected and rapid regression to a helpless state in which she could have no expectation that he will behave towards her or himself as an adult must have been very hard to bear. She had also taken on the entirety of management of their lives. She spoke selflessly about it without significant reference to the inevitable adjustment she had to make to her own life and expectations. She is not a psychiatrist or a lawyer. Where she needed to give a description of C’s condition it is not surprising that she highlighted the hardest aspects of it.

There are discrepancies in the evidence in the sense that some of Mrs Connor’s descriptions of C’s condition e.g. to Dr Majeed in June 2011 present him as extremely disabled while it is clear particularly from recent covertly recorded footage that C’s condition has not always precluded him from carrying out some social functions and some ordinary, familiar work-type activities. However, the degree of discrepancy is something that needs careful consideration. Even in 2011, as Mrs Connor accepted in evidence, C was able to relate more normally to known people if in a familiar setting. It was suggested to Mrs Connor that she did not give this information to Dr Majeed. She did not and so this is another discrepancy upon which I am invited to reject Mrs Connor’s evidence. I decline to do so. Mrs Connor was describing C to a doctor who was carrying out an assessment as to whether C should be provided with benefits which would allow her to purchase care for him. She has always been consistent in her description of C needing care and constant supervision. Although I am satisfied that she failed to give a full picture to Dr Majeed I am also sure that her account to him was consistent with C’s symptoms albeit he was not always as severely affected as she portrayed to Dr Majeed.

In her second statement made in 2014 Mrs Connor observed and reported changes which could be described as ‘improvements’ in her husband’s condition: the return to horse-riding and the ability to be left alone for short periods of time. It follows that when Mrs Connor states, as she has throughout, that he remains the same she is speaking of something different to simply his physical confidence and ability or being semi-autonomous for short periods of time. What remains the same is his regression into the child-like state mental that he has inhabited since shortly after the work accident in 2010, which she is in the best position to describe and from which, by virtue of her intimate caring relationship with him, she suffers as much as he does.

Over the relevant six years C has behaved in various differing ways, he has ridden in hunts, socialised in parties, worked with a friend unloading metal from a flat-bed trailer or truck, been fishing, driven a tractor, been unable to walk very far at all, been unable to communicate with doctors and other medical personnel, unable to sleep, unable to breath normally etc I agree with Mr Rawlinson QC that the issue is at what stage variations in presentation become discrepancies. I am satisfied that the variations are more likely than not just variations rather than discrepancies.

On one view, that contended for by those representing C, this case could have been concluded simply on the basis of the joint psychiatric opinion expressed in the December 2015 report. However, that would have been erroneous because, as it became clear, Professor Maden did not accept that the clear agreement expressed there actually represented his view. This was plainly an unsatisfactory position but both sides have now had the benefit of hearing the evidence as I have. I preferred the evidence of Dr Hyde to that of Professor Maden on every topic on which they disagreed because Dr Hyde has throughout presented a comprehensive, reasoned and objective picture in each of his reports and dealt with fresh evidence (such as the covert footage) in a straightforward rigorous way in evidence. On the other hand Professor Maden appeared to be less well prepared, less engaged with the totality of the evidence and in re-examination he was unreasonably and surprisingly dismissive of matters which he appeared to have agreed in the joint expert’s report as part of his evidence in chief.

The respective views of the consequence of such variations/discrepancies as appear to be present, especially those demonstrated towards the end of the relevant period, do not, in my view, preclude the diagnosis of the recognised psychiatric disorder. Rather they demonstrate, as Dr Hyde concluded, promising improvements which are likely to continue once this litigation is ended.

The evidence about C having black-outs/absences i.e. losing consciousness and collapsing is unclear and unsatisfactory both from the family/carers who have not reacted by seeking further investigation of them and also because neither psychiatrist has any explanation for them although they agree that there is no organic cause for them. It is not necessary for me to decide whether they are or are not consistent with Pseudodementia or related in any way because I am satisfied that C did develop such a condition after his work accident, whether he still had it in 2011 (the earliest possible date for black-outs) or subsequently is relevant to quantum.

As noted above, in his written closing submissions Mr Rawlinson QC, counsel for the 2^nd Defendant but without demur from the others, described C’s presentation on the television link as one of ‘resistance to being questioned or examined.’ This assertion (read as it must be in the absence of any accusation of malingering) presupposes that C was capable of deliberately resisting the trial process. Counsel allows that this is essentially a matter for the court’s impression. The impression given by the short period of observation over the television link was entirely the opposite: C appeared to be nervous and highly stressed and his behaviour was entirely consistent with that experienced by the medical experts and others who have had dealings with him over the past few years.

This is an unusual and complex case but having heard evidence over the course of three days I am satisfied that C has discharged the burden upon him on the balance of probability. Having found C to have genuinely presented the psychiatric symptoms described I accept and agree with the joint experts’ opinion of December 2015. I answer the question: Has C proved that he has suffered from an actionable psychiatric injury? Yes, he has proved that he suffered hysterical Pseudodementia: F44.8.8 ICD 10.