Kimathi & Ors v Foreign and Commonwealth Office

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

5 –

Nyambura

Kanuthu

Kang’ang’ira

36

And/oralternatively theClaimant has:

This arises from transposition of the

It is not an error – it is related to the following sentence and

Amendment

permitted as intended and not objected to.

amendments, and is not an

injury amendment. D does not object

to the additional deletion, but wishes to draw

it to the

attention of the Cs and the Court in case it is an error.

should have been deleted.

Tidying up.

44

Particulars of Injury.

No. See further below.

Pursued.

Amendment refused.

44

‘The Claimantsuffered apsychologicalinjury, namelya mildChronic

Adjustmentdisorder, withsymptoms

persisting forapproximatelytwo years,remittingspontaneouslythereafter.

Not agreed.

1)The terms of §§28-30

of the

judgment dated 27 April 2017 provided that the

amendment

s may not allege ‘any specific injuries not already pleaded in the

Particulars of Injury’. D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already

1) This type of amendment was not envisaged in March (see Response to

D’s

introduction at para 6 above). The original pleading describes distress and trauma and pervasive sadness following her son’s death, and states that further particulars will

be set out in the medical evidence “that will follow” [4-

14]; the medical evidence then did reveal relevant psychiatric disorder and made a

(i) This falls within paragraphs

9-13 of the main judgment.

(ii) Although some distress and sadness effects were pleaded, no psychiatric injury was pleaded.

(iii) If this type

of amendment was not envisaged by the Claimants in April 2017, it should have been envisaged. They had had the medical evidence for over a year by then.

(iv) The fact

falling within the Particulars of Injury.

2)The amendment

pleads a specific

named

psychiatric injury that had not previously been pleaded by TC5. TC5 has at no prior stage alleged that she suffered from any

compensabl

e psychiatric/ psychologic al injury. TC5 has failed to

identify

symptoms

satisfying the DSM or ICD criteria

for a

Chronic

Adjustment Disorder.

3)A fortiori and in any event, the original pleading did not contain even a general

diagnosis [4175 – 176]. D was aware of this at the time of XX of the medical expert and did undertake XX on the disorder, specifically its timing and duration [339757 to 9758]. In particular, at line 20 – 22, D attempts to undermine the conclusion of a chronic adj disorder. 2) TC 5 is unsophisticated. It takes an expert to elicit injury as Professor Fahy did and which lead to his diagnosis at 4175; whether he is correct and TC 5 satisfies the relevant criteria is a matter for submission. At 33-9759], expert agrees with J that someone taking a statement would be more general.

3) as above. 4) the application to amend was made as soon as reasonably

that the

Defendant asked questions of the psychiatrist, without prejudice to its primary contention that the matter was not pleaded, is not something the Claimants can pray in aid. (v) The

Defendant did not crossexamine TC5 about the psychological injury. The Defendant cannot be disadvantaged by having crossexamined the doctor.

(vi) The Particulars of Injury state that “the Claimant has suffered considerable distress and trauma following her son’s death.” This is (a) specifically not linked to physical injury to

pleading of

‘psychologi

cal injury’.

4) The delay in amending

the pleading to include this

specific

named

psychiatric injury is egregious.

Accordingly:

5) The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment.

practicable after the expert had given evidence; it was a proportionate decision to amend at that time rather than prior to the experts giving evidence. 5) As above, the scope of the samples provided were necessarily limited; overall, the prejudice to the Claimant is that she will not recover for a psychiatric injury that she has in fact suffered; the prejudice to the Defendant is that they may have to compensate her if ultimately found liable.

herself and (b) not a pleading of psychiatric injury.

(vii) It has not been explained by the Claimants why no psychological injury was pleaded at the outset.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

10 – James

Mugo

Kibande

25

Particulars of Injury (as above).

No.

‘during forced labour²’

Footnote number should be coloured red.

Noted. Footnotes not intended to be permanent.

‘…at the

camp and…’

1) The allegations of injury are pleaded at §25 to have occurred ‘during forced labour’.

2) Any amendment

alleging injury outside that context is impermissibl

e.

3) No labour is alleged to have occurred ‘at the camp’. On the contrary, §13 says that

TC10 had to

On

reflection, this

amendment

is unnecessary. Not pursued. The effect of

the evidence is for submission.

Now withdrawn therefore not permitted.

‘go’ to work [i.e. it was outside the camp], §15

says that the

work

entailed diverting water from a river, and §12 has been amended so

as not to allege that the work happened at the camp.

4) The amendment

therefore adds fresh claims for assaults and consequentia l injuries at a new location – the camp – where no forced labour is alleged to have taken place, and quite apart from whether such labour is alleged or proven.

Accordingly:

5) The amendment falls outside the scope of permission given in respect of the

IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the

Particulars of Injury.

6)It is a ‘liability’

amendment

and there is no jurisdiction now to

permit it. It should have been served by 16 June/21 July

(§4.a of the 19 May 2017 order) and ruled upon in July/August.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

12 –

Kamau

Mungai Gakuya

73

Particulars of Injury (as above)

No.

‘…which he attributes to sand and dust’

1)This pleads TC12’s opinion about the attribution of his loss of eyesight. It is not a pleading of injury or (for that matter) causation. It is at best superfluous.

1) This pleads the fact [9-184; §60 and 62]. This is a matter of submission: whether what the TC thinks and feels about his injury and its cause

is part of his injury.

Amendment

refused. It is not arguable that TC12’s erroneous attribution of loss of eyesight to sand and dust can sound in damages.

2)Further and in any event, there is no support in the medical evidence for any eye injury due to sand and dust. Ms

McGuinness found vision and acuity in TC12’s left eye to be normal [9206], and that it was ‘not

possible to

comment on when he lost the vision in his right eye or why’ [9207]. TC12

2) as above. The evidence is that he thinks he is partially blind due to being exposed to sand and dust §62; [9-184]. The extent to which this sounds in damages is a matter of submission.

did not mention any eye injury to

Ms

McGuinness.

‘…when

being told to “cover”’:

1)This is not a pleading of injury, but rather seeks to amend TC12’s

‘liability’ case, to attribute a pleaded assault/batter y (being hit on the head) to

circumstances in which it had not previously been pleaded to have taken place. The originally pleaded allegation of

being ordered to ‘cover’ is at §35 of the IPOC, relates to TC12’s alleged treatment at Embakasi, and makes no assertion that TC12 was hit on the head. 2)As such there is no jurisdiction

1) There is a grammatical error in the original drafting of the Particulars of

Injury which the amendment sought to rectify. The words “when being told to “cover” are not pursued. The amendment sought is: “He was regularly hit theClaimant withclubs his headsonhis head withclubs”.

For the avoidance of doubt, this refers to §25 and §30 of the IPOC where he refers being hit on his head with clubs during roll call/ head count at Nakuru Prison and “in the same way” at Gilgil Prison.

The TC does also refer in his evidence [33-2710] to being hit “to hurry up” during the roll call that he calls “being told to cover” in Embakasi (as referred to at §35 IPOC). This is not

The Claimants do not seek this

amendment but seek the

amendment “He

was regularly hit, the Claimant hisclubs his headonhis head withclubs.” This is permitted for the reasons given by the Claimants, namely tidying up of a grammatical error.

now to

permit this amendment, which should have been served by 16 June/21 July

(§4.a of the 19

May 2017 order) and ruled upon in July/August. 3)It falls outside the scope of permission given in

respect of the

IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the

Particulars of Injury.

being pursued as an amendment and Cs apologise for any confusion by conflating “being told to cover” and the

“rollcall/headcount

”.

2) as above.

3) as above and as per response to D’s introduction at para 6 above.

‘The Claimant has scars on his head from being required to carry buckets of soil on his

1) This asserts a previously unpleaded injury (scarring to the head due to carrying buckets).

2) The

1) Accepted that scarring has not been referred to as a specific injury before, but the amendment should be permitted nonetheless because D was aware that the Claimant was

Amendment refused:

(i)Scarring or any injury to the head has not been pleaded before. Neither has the allegation of being required to carry buckets on

head.’

amendment

therefore falls outside the scope of permission given in respect of the

IPOCs considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the

Particulars of Injury.

3)It is a

‘liability’

amendment

and there is no jurisdiction now to

permit it. It should have been served by 16 June/21 July (§4.a of the 19 May 2017 order) and ruled upon in July/August. The originally pleaded allegation of carrying buckets is at

complaining of scarring, from the time of the medical evidence and cross examined the Claimant on his injury: [33- 2642 to 33-2643].

2) see above.

3) The injury is from the carrying of buckets. The carrying of buckets is pleaded. §73 states that “as a result” of what happened, he suffered injury and the injury is then set out. The amendment should be permitted.

There is no prejudice: both counsel and J inspected the C’s head when he pointed to the area where he said scars existed [33-2643]. The court will ultimately hear submissions on whether they were visible or not.

It is fair to say that although D alluded to this injury, they did not specifically XX on it [3310224].

The prejudice to the Claimant is that he will not recover for the full

the head.

(ii) This is a physical injury which could and should have been pleaded. It is an additional (not a lesser) pleading. It falls squarely within paragraph

28 of the April 2017 judgment.

(iii) The

Defendant did not cross-examine Ms. McGuinness

in relation to the scarring and was, in the light of the pleading then before them, entitled not to do so. There is, therefore, prejudice though lack of prejudice does not, on the authorities, mean

that a very late amendment will be permitted. (iv)The fact that the Claimant gave evidence as to this is insufficient.

§34 of the IPOC and makes no assertion about TC12 using his head, let alone any adverse

effects to his head.

extent of his injury; the prejudice to the Defendant is that they may ultimately be found liable for an injury of which they were fully aware.

‘…but he suffers from whathedescribesas flashbacks when.Theyamount todistressingmemorieswhere he

recalls the impact of detention upon his life and his

belief it had led to a life in

poverty.’

1)The

allegation that TC12 experiences ‘what he describes as flashbacks’ merely pleads TC12’s alleged terminology (as a nonmedicallyqualified nonEnglish speaker) for an aspect of his psychological experience. There is no support for the assertion that the word ‘flashbacks’ at §50 of TC12’s statement [9183] should be taken to ‘amount to distressing memories’.

1) The evidence from the TC is that he suffers “flashbacks” [9183] although he also says he does not [9-129], which may well reflect the difficulty in interpreter – mediated evidence in an elderly vulnerable witness; in any event, the amendment is in accordance with the agreed amendment to TC

31.

Further, the amendment is to a lesser allegation: it makes clear that “flashbacks” cannot be sustained as a term of art as Prof Fahy does not support any psychiatric diagnosis [33-9839

– 33-9840]. Prof Fahy does, however, agree that he described witnessing terrible

Amendment refused.

(i)Notwithstand ing that generally a lesser allegation is permitted by way of

amendment,

(paras 7-8 of main judgment) this one is refused. (ii)The Court accepts the Defendant’s submissions (1) and (2). The evidence does not support the amendment. As the Defendant says there is no support for the

assertion that the word

“flashbacks” should be taken to “amount to distressing memories”; this is particularly the case when one takes account of Professor Fahy’s report as quoted

events, including seeing a man commit suicide [33-9837]. In the absence of a formal diagnosis, what he saw and any effect on him that the court finds on submission, can sound in damages.

in the

Defendant’s submission number 2 and the fact that TC12 himself (9-129) said he did not suffer flashbacks. The only mention is in his witness statement which pre-dates 9-129 and the detailed medical evidence.

2)The

psychiatric evidence is anyway to the clear effect that TC12 does not suffer from flashbacks or distressing memories. Prof Fahy’s report at [9-236] states: ‘I asked Mr Gakuya about any disturbing memories, flashback experiences or other disturbed thoughts. He said that it had never disturbed him as such. What would be gained by it? He said that he had not experienced bad dreams. He was a strong man. He never allowed his mind to go back. He looked forward. He coped well.’ See

2) the effect of the evidence is a matter of submission. The court is ruling on the permissibility of the amendment, not on whether any damages are ultimately recoverable or how much.

also 9-237: ‘He denied any history of intrusive memories of events at the prisons, flashback-type experiences or recurring dreams.

3)If, despite the disavowal of psychiatric injury, these amendments

seek to assert or support some form of allegedly compensable injury, such an allegation is not already pleaded in the Particulars of Injury. The amendments

therefore fall outside the scope of permission given in

respect of the IPOCs

considered in the April judgment. D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

3) PD Part 16.4 requires “brief details of the claimants personal injuries” with medical evidence attached. The order of 14.3.14 §15 [2-16] did not require C’s to attach medical reports to the IPOCs. It has always been clear that the evidence of the jointly instructed experts will be referred to. The amendment

gives brief details of those factors suffered by the TC that will found a submission.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

13 –

Ndogo

Gatutu

56

Particulars of Injury (see above)

No

‘He was hit with canes and whipped and other implements, as pleaded herein.’

1)The new text does not make sense in the context of the sentence as

1) “herein” means as pleaded in the IPOC ( perhaps “hereinabove” might have been better insofar as

Amendment

permitted for the reasons given in the Claimants’ response. The amendment

a whole.

“herein” has been taken only to refer to §56). Source of

“other implements”: §14: refers to gun butt; §15: refers to whip or cane, sword and spear; this was

an agreed liability

amendment (as per the Revised Annex to Sixth WS of Andrew

Robertson- Table of Disputed IPOC amendments (as served, revised) at p.23).

should be “…and hit with other implements…”.

2)It is

anyway at best

superfluou s; at worst

impermissi

ble

(because outside the scope of the April ruling and/or introducin g fresh injuries). To the extent that the particulars of injury already refer to

2) This provides further particularisation and clarification. The other implements are pleaded in the agreed liability amendment at §15 of the amended IPOC.

See above.

injuries and the

implement

s that caused them (e.g. ‘stabbed on his thigh with a spear’) there is no need for the

amendmen

t; to the extent that Cs now seek to introduce injuries caused by implement

s that were previously not pleaded permission must be refused.

‘injured on his elbow,’ and ‘…right

elbow, …’

1)TC13 told Mr PayneJames that he did not know what had caused the scar to his right elbow (see

§6.f of the Pt35 responses at [10217]). There is no account in

1) C alleges regular beatings i.e. §14:

“regularly beaten” at Langata; “beatings happened on a daily basis”; “vicious assaults”; §16: Indiscriminate

beatings”;

He alleges beatings at

Manyani: §19;

§24: regularly

a)Amendment allowed. Although there are slight distinctions as referred to by the Defendant

in oral submissions this comes within the type of

amendment

permitted in

TC13’s pleadings or evidence of tortious injury to the right elbow.

beaten at Manyani; §56 Partics injury: C states he was “assaulted on multiple occasions” says he was “beaten like an animal”; He was ““hit in multiple areas of his body”.

A scar on the right elbow was identified on medical

examination [10-202]; it is non – recent trauma; it is not in a site of typical accidental injury [10-217].

The amendment

is consistent with existing pleading of multiple beatings and is within the scope of the permitted medical amendments; it amounts to particularisation based on medical evidence. His absence of knowledge about how the

scar to his elbow happened is not determinative

respect of TC31 in the April 2017 judgment

i.e. it would have been consistent with being beaten ferociously. TC13 did give evidence of this injury at 33-1836 as Mr Fetto helpfully pointed out.

of causation issue where he was ubiquitously assaulted.

2)D was entitled to rely upon what TC13 said to Mr

PayneJames about the right elbow, together with the absence of any account in TC13’s pleadings or evidence of such injury.

2) as above and further, D XX on this injury at [33-9345]; C was not aware of the injury identified by the doctor on his right elbow. That being the case, he could not have mentioned it before, and it took the expertise of the doctor to identify it and recognise it as a non – recent, non – accidental – type injury.

3)The

amendmen

ts have been made without TC13’s instruction s, in spite of what TC13 said to Mr

PayneJames and without any opportunit y for D to cross-

3) D did have the opportunity to XX; see XX at 33-9345 where causation was addressed by D and confirmation of photographic evidence.

examine TC13. D is prejudiced.

4)Neither party questioned

Mr PayneJames about TC13’s right elbow. D is prejudiced in that regard also.

4) not correct: see XX at 339345 where D

refers to the right elbow scar, causation was addressed by D and confirmation obtained of photographic evidence.

5)Further and in any event the

amendmen

ts are

wholly unclear – there is no

account of how

TC13’s elbow was allegedly ‘injured’.

5) the submission will be that this was probably during an episode of the vicious and ubiquitous beating that TC 13 describes and, having been viciously and ubiquitously beaten up, he

didn’t identify or remember that his right elbow had been cut. The judge can rule in due course.

‘cut on his left arm with a sword’ and

‘…left arm,

…’

1)These assert an injury not already pleaded within the Particulars of Injury and should not be permitted.

The

1) See §15 of the Amended IPOC; this was

an agreed liability

amendment. In their schedule in this respect, D simply said “yes” to the amendment and

This is permitted as, although not replicated originally in the Particulars of

Injury, the full allegation was in the body of the pleading

Particulars of Injury make no reference to cutting injuries. 2)D relied upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury when it agreed the amendment

to move text (referring to this alleged incident) to §15 of the IPOC. It continues to rely upon them.

did not say it was on the basis of any “undertaking”;

See: the

Revised Annex

to Sixth WS of

Andrew

Robertson- Table of Disputed IPOC amendments (as served, revised) at p.23.

2) As above and see general response at para

.

(originally

IPOC paragraphs 25 and 26, now IPOC paragraph 15).

‘beaten on his right hip with a gun butt’ and ‘…hip, …’

1)These assert an injury not already pleaded within the Particulars of Injury and should not be permitted.

TC13’s

Particulars of Injury make no reference to being struck with any

1) This refers to the allegation at

§14 of the IPOC as originally pleaded; that paragraph refers to being hit with a gun butt and being beaten on his right hip with a gun butt.

2) as above.

Permitted as above.

implement other than a cane or whip.

2)D relies upon Cs’ undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

‘…left lower

leg, …’

1) This asserts an injury not already pleaded within the Particulars of Injury and should not be permitted. The

Particulars of Injury make no reference to an injury to the left lower leg.

2) D relies upon Cs’ undertakin g and the court’s ruling in April relating to injuries not

1) C alleges regular beatings i.e. §14:

“regularly beaten” at Langata; “beatings happened on a daily basis”; “vicious assaults”; §16: Indiscriminate

beatings”;

He alleges beatings at

Manyani: §19; §24: regularly beaten at

Manyani;

§56 Partics injury: C states he was “assaulted on multiple occasions” says he was “beaten

like an animal”;

The amendment

is in line with

Amendment

refused. Had there been any evidence from the Claimant as to being assaulted on the lower leg, this would have been within the type of

amendment

permitted for TC31 in April 2017. However it is conceded that there is no such evidence.

already falling within the Particulars of Injury.

TC 31 already ruled upon (“beaten ferociously all over his body, including to thescrotal area”.

2) see above and under response to Ds introduction para 6.

3)Further or alternatively , there is no allegation anywhere in the IPOC of an incident in which TC13’s left lower leg was injured (as accepted by Mr Payne-

James – see

§2.a of his Pt35 responses [10-214]). This is a ‘liability’

amendment and there is no jurisdiction now to

permit it. It should have been served by 16 June/21 July

(§4.a of the

19 May

2017 order) and ruled upon in

July/August.

3) as above.

4)Further and in any event the

amendment is wholly unclear – there is no pleaded account of

how TC13’s

left lower leg was allegedly injured.

4) as above.

Amendment

should be permitted and will liability for injury be a matter for submissions.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

18 –

Mwangi

Macharia

34 (new

37)

And/or

alternativelythe Claimanthas:

b. An actionfor breach ofstatutoryregulationgiving riseto a civilright ofaction;

No. the text struck through, coloured in red, should be coloured green.

Agreed; will change to green in final version.

Note general points above: a review has found some additional errors of this nature and they will be rectified.

Permitted on the agreed basis of changing to green in final version.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

19 – James

Irungu

Gathunga

54

Particulars of Injury (see above)

No.

‘The Claimant was assaulted on multiple occasions asset out aboveherein and in

particular:’

1) D objects to the words ‘…as set out above herein and…’. That wording seeks to add to the Particulars of Injury any assaults not already alleged within them but

‘set out above’ within the IPOC.

2) It therefore asserts injuries not already pleaded

1) yes, herein is intended to refer to the assaults pleaded in the

IPOC;

Part 16 PD4.3 only requires “brief” pleading of personal injuries.

The need to serve a medical report with the IPOC was dispensed with by order [2-19 §15], so no further detail by reference to medical evidence was required.

The reference

Amendment

refused. The Particulars of Injury, although required to be “brief”, do require the relevant injuries to be pleaded. This could be construed as change of case in that it now purports to claim for unspecified injuries by general reference to the body of the Particulars of Claim.

within the Particulars of Injury and should not be permitted.

3)D relies upon Cs’ undertakin g and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

to the body of the IPOC in the Partics of Injury regularises the pleading.

There can be no prejudice where the assaults are already pleaded within the IPOC.

2) as above.

3) as above and as per response to

D’s

Introduction at para 6.

‘The Claimant was slapped very hard across his face at Langata camp causinghim to fall tothe groundand loseconsciousness.’

1)The fall to the ground and

(possibly consequent

ial) loss of

consciousn ess amount to an injury or injuries not already pleaded within the Particulars of Injury and should not be permitted. No injury due to falling nor any head injury has been pleaded. At

1) this is as per the permitted amendment for TC 31. To be slapped very hard across the face is consistent with being caused to fall down and lose consciousness. It clarifies the effect of the very hard slap.

It was reported in the medical evidence: Mr Heyworth [15201] and TC

17’s first statement [15-

179]; addressed by

Amendment permitted. This is within the permitted amendment for TC31.

Paragraph 16 IPOC refers to the TC being “knocked unconscious” and see his witness statement paragraph 14. The Claimant specifically

puts this

amendment

as a

momentary

loss of consciousness.

most the relevant Particulars of Injury assert a

mechanism of potential (unspecifie d) injury.

2)D relies upon Cs’ undertakin g and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

D in cross examination

[33-8023]

2) as above and per response to

D’s

Introduction at para 6.

3)It is

anyway

incorrect that D

crossexamined Mr

Heyworth

‘on’ the fall and head injury. The transcript passage referenced in fn2 entailed a mere recital of history

set out in

Mr

Heyworth’s report with a view to

3) D had opportunity to cross examine and themselves raised the issue without qualification in that instance; D can ask further Part 35 questions of Mr Heyworth if necessary.

confirming its source. D would be prejudiced in not having further opportunit y to crossexamine Mr

Heyworth

if this

amendmen

t were permitted.

‘…one of his fingerthumb⁶bones was damaged the day his hand was cut atKamagutu

chief’s camp as

stated atparagraph 38above.’

1) This asserts an injury to the thumb, which has not already been pleaded within the Particulars of Injury and should not be permitted.

2) D relies upon Cs’ undertakin g and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

1) This is in line with the permitted amendment to TC 31; His hand was injured (cut) during a beating; he raised his hand to protect himself – a digit was damaged, the

clarification is that it is the thumb rather than the finger.

Clarification has been provided by examination by the medical expert.

2) As above per response to D’s Introduction para 6.

Amendment refused. This is not an amendment in line with that permitted to TC31. The Claimant has alleged that his hand was cut. His pleaded case and evidence was that a finger bone was damaged.

Importantly TC19 has never given any evidence whether written or oral saying that his thumb had been injured. If this was a possible error then it should have been clarified and

amended

prior to TC19 giving evidence.

3)Further and in any event, TC19 gave no written or

oral evidence asserting

that his

thumb had been injured. D

is

prejudiced in having no opportunit y to crossexamine him further.

3) D had the opportunity to XX on his hand injury as TC himself raised the issue of his hand injury [33-2811]; they chose not to do so.

Further, D did XX the medical witness extensively on this injury and did so in order to undermine the injury: [33-8030 – 33-8035].

D also asked questions about the thumb injury in Pt 35 questions: [15-222] relating the injury to the hand to the injury to the thumb (not the finger). This indicates D was prepared to accept that an injury to the thumb was sustained during the incident that cut the hand.

i.e. no

distinction was drawn by D.

That is sufficient to mitigate any prejudice.

‘The Claimant has suffered symptoms as

set out in themedicalevidence butwhich do notsatisfy the

criteria for arecognized⁷ psychological injury; he suffers from what he describes as flashbacks andwhich DrDavidssonrecorded asnightmares8and ruminates about events that he feels have changed the course of his life.Thelegal effect ofthis is a matterforsubmission.’

1) This amendment

amounts to a pleading that TC19 has not suffered psychiatric / psychological injury.

However, it goes on to assert that ‘the legal effect’ of

TC19’s

‘symptoms’

is ‘a matter of submission’. That is at best inchoate and at worst wholly unclear.

1) This is an amendment to

a lesser allegation and removes an allegation of recognised psych injury; the insertion of “what he describes as”

is as per

amendments to TC 31 which was not objected to by

D;

Amendment

permitted, save for the words “and which Dr Davidsson recorded as nightmares”. In general this amendment is permitted for the reasons given in paragraphs 7-8 of the judgment. (Re: “flashbacks” see the comments on TC9 and TC14).

However the Court accepts the Defendant’s point 3 that there is no support for the

assertion that word

“flashbacks” at paragraph 45 of

TC19’s statement should be equated with what Dr Davidsson recorded as nightmares. Indeed, as Ms Ruck helpfully assisted, ICD10

Diagnostic

Criteria for

Research F43.1B are suggestive of nightmares being distinct from flashbacks.

2) The

allegation that TC19 experiences ‘what he describes as flashbacks’ merely pleads TC19’s alleged terminology (as a nonmedicallyqualified Kikuyu speaker) for an aspect of his psychological experience, without any particulars of the intended meaning. 3) There is no support for the assertion that the word

‘flashbacks’

at §45 of TC19’s statement [15-185] should be equated with

2) He refers to what he describes as flashbacks in his evidence [15-185 §45] and that he feels bad when he remembers the suffering he underwent. A concession has been made to remove a recognised psychological injury, but what he experiences can still sound in damages and will be the subject of submission.

Dr

Davidsson’s evidence supports the amendment [15-245 to

246]; D was able to cross examine [338941 – 338949].

3) This is accepted. The

what Dr Davidsson recorded as ‘nightmares’. The text of

§45 makes no reference to nightmares or dreams.

amendment is not pursued.

4) If, despite volunteering that TC19 has not suffered ‘recognised psychologica

l injury’,

these

amendments

seek to assert or support some form of compensable injury, such an allegation

is not already pleaded in the

Particulars of Injury.

The amendments

therefore fall outside the scope of permission given in respect of the IPOCs considered

in the April judgment. D relies upon

Cs’

4) what the TC

experiences can still sound in damages and will be the subject of submission.

RE

undertaking: See under response to Ds introduction para 6.

undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

20 –

Elizabeth

Wangui

Waithaka

6

The Claimant suffers poor health. The Claimant still experiences pain to her hands, knees, shoulders,legs¹ and back, caused by the beatings she suffered during detention, interrogation and forced labour, detailed herein. Shetook the oathtwice [331953], thefirst timebefore

Emergencywas declared.

1 Ref Ms

McGuinness

at para 36and 43 ofmed report[16-160].

Not agreed as to the addition of ‘legs’ and the associated footnote.

1) The terms of §§28-30 of the judgment dated 27 April 2017 provided that the

amendments

may not allege

‘any specific injuries not already pleaded in the Particulars of Injury’. D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2) The amendment pleads an injury

to the legs of TC20 that had not previously been pleaded. At no prior stage had TC20 alleged that she suffered from any compensable physical injury in respect of her legs.

3) The delay in

1) §42 refers to being his on back, legs and hands when being assaulted by policemen. §6 is a general statement of her injury under

“Background details”. The reference to “legs” appears to have been missed out of

§6. It is not a

new amendment and was also dealt with in the medical evidence [16160].

2) as above. It was pleaded.

3) no delay; as above.

4) as above.

Amendment refused.

(i) Paragraph

42 of

TC20’s IPOC does allege that she was hit on her back, legs and hands. However

there is no allegation at present in

paragraph

6 to the effect that

the

Claimant continues to suffer pain in her legs.

(ii) Therefore it is not correct to say that anything other than suffering bruising on her legs has been pleaded so far (in

paragraph

42).

(iii) Also TC20 has never given evidence of

amending the pleading to include this specific named physical injury is egregious.

Accordingly:

4)The amendment falls outside the

scope of permission given in respect of the IPOCs considered in the April judgment.

continuing leg pain.

42

Particulars of Injury

Not agreed. See further below.

42

During an interrogation, the Claimant was physically assaulted by policemen

such that she

fell

unconscious², in the presence of British officers.

2. Ref medreport at [16160] and evidin crossexaminationby C’scounsel [33-

10262]

Not agreed.

1)The terms of §§28-30 of the judgment dated 27 April 2017 provided that the

amendments

may not allege

‘any specific injuries not already pleaded in the Particulars of Injury’. D

further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2)On any sensible understanding,

1) This amendment is within the scope of the permitted amendment to TC 31; she alleges a physical assault, with beating to various areas of her body (as pleaded and described).

2) She does not allege a head injury. The pleading is not that she was knocked unconscious. It

is that the beating was

such that she fell unconscious. This is dealt

Amendment refused. There is no previous pleading of loss of consciousness nor anything in TC20’s witness evidence to support it.

the amendment pleads a new head injury to TC20 that had not previously been pleaded. The amendment

is therefore a liability

amendment

asserting the existence of a new cause of action.

3) At no prior stage had TC20 alleged that she suffered from any compensable physical injury in respect of being rendered unconscious through physical assaults as described. Indeed, the new allegation of having been rendered unconscious is conspicuously absent from §§20-22 IPOC.

4) The delay in amending the pleading to include this specific named physical injury is egregious.

Accordingly:

5) The amendment

with in XX by the medical witness: 3310261.

3) as above.

4) no delay .

5) as above.

falls outside the

scope of permission given in respect of the IPOCs considered in the April judgment.

42

As pleadedat Paragraph

6 herein, theClaimantsuffered jointpain from thebeatings andcontinues todo so; for theavoidance ofdoubt, shesays thatsuch painwas from thetime of thebeatingsonwards andshe has nothad a painfree daysince³.

Not agreed.

1) The submissions in respect of the amendment to §6 above are repeated, with the effect that no particulars of injury ought properly to be permitted in respect of the new allegation of TC20’s experience of pain in her legs.

2) Further and in any event, the passage of the oral evidence of Ms McGuinness cited does not

support the amendment that “for the avoidance of doubt, she says that such pain was from the time of the beatings onwards and she has not had a pain-free day since”.

1) Permitted amendment as per TC 31; she describes beatings “during detention, interrogation and forced labour” (§6); these were vicious beatings e.g. §20: so many blows she could not tell who was beating her; it was so extensive a beating, she thought she was going to be killed. At §18: huge amount of physically demanding forced labour during which time she was repeated to repeated physical assaults. Etc. To allege that she suffered joint pain from these beatings without a painfree day since them, is clarification in

(i)The first part of the amendmen

t (omitting the word “joint” as the parties agree) i.e.

“As pleaded at paragraph

6 herein, the

Claimant suffered pain from the beatings and continues to do so” will be permitted, save that it is clear that the

amendmen

t to the legs has not been allowed and therefore this continuing pain does not apply to the legs.

accordance with the permitted amendment to TC 31.

2) the effect of

Ms

McGuinness’

evidence is a matter for submission.

(ii)The

remainder of the

amendmen t is refused.

TC20 gave no evidence to support this.

42

The Claimantsufferedposttraumaticstressdisorder⁴;

4 Professor

Mezey,

Answers to

Part 35

Questions[16-215].

Not agreed.

1) The terms of §§28-30 of the judgment dated 27 April 2017 provided that the amendments may not allege ‘any specific injuries not already pleaded in the Particulars of Injury’. D further relies upon C’s undertaking and the court’s ruling in April relating to injuries not already falling within the Particulars of Injury.

2) The amendment pleads a specific named psychiatric injury that had not previously been pleaded by TC20. TC20 has at no prior stage alleged that she suffered from any compensable psychiatric/psycho logical injury. The

The submission in relation to TC 5 is repeated. 1) This type of amendment was not envisaged in March (see Response to

D’s

introduction at para 6 above).

2) TC 5 is unsophisticated . It takes an expert to elicit injury as Professor Mezey did and which lead to her diagnosis at 16-215; whether she is correct and TC 20 satisfies the relevant criteria is a matter for submission. 3) as above. 4) the application to amend was made as soon as reasonably practicable after the expert had given evidence;

Amendment refused.

(i)See the Court’s response in

relation to

TC5 and paragraphs

9-13 of the main judgment.

Also the

Test

Claimant gave no evidence of

psychologi

cal

symptoms, save about difficulty in waking up

in the

morning and memories coming back (oral evidence).

(ii) As

regards the Defendant’s point 6, namely that there is no

symptoms

described fall well

short of the components of PTSD under the DSM or ICD criteria.

3) A fortiori and in any event, the original pleading did not contain even a general pleading of ‘psychological injury’.

4) The delay in amending the pleading to include this specific named psychiatric injury is egregious.

Accordingly:

5) The amendment falls outside the scope of permission given in respect of the IPOCs considered in the April judgment.

it was a proportionate decision to amend at that time rather than prior to the experts giving evidence. 5) As above, the scope of the samples provided were necessarily limited; overall, the prejudice to the Claimant is that she will not recover for a psychiatric injury that she has in fact suffered; the prejudice to the Defendant is that they may have to compensate her if ultimately found liable.

“stable basis” for pleading the alleged injury,

whatever

the criticism of Professor Mezey’s response in the Part 35 questions, nevertheless she did diagnose PTSD. Therefore whether or not the

Claimant suffered from this psychiatric injury would, had the

amendment been permitted, have been a matter for final submissions.

6)For the reasons pleaded at §62.c. of the

Amended

Individual Defence [16-43], there is no stable basis for pleading the alleged injury. In her expert report, Professor

6) the effect of the evidence, if the amendment is permitted, is a matter for submission.

Overall, the prejudice to the Claimant is that she will not recover for a psychiatric injury that she

Mezey concluded that there is no evidence that the Claimant is currently suffering from Post-traumatic Stress Disorder, a Depressive Disorder, or any other mental illness or disorder [16206, §81]. She further concluded that there was ‘no evidence’ for a lifetime diagnosis of Post-traumatic

Stress Disorder,

Depressive Disorder, or any other mental illness or disorder [16206, §820. The conclusion in the Part 35 Response

referred to in footnote 4 of the amendment

was reached in the absence of any further evidence or examination of the Claimant.

has in fact suffered; the prejudice to the Defendant is that they may have to compensate her if ultimately found liable. D was able to (and did) cross examine in detail on the criteria and the diagnosis reached [338533 – 338540].

Test

Claimant

Paragraph amended

Amendment

Agreed?

Claimants’ response

Judge

21 –

Nelson

Njao

Munyoike

39

Particulars of Injury (see above)

No.

‘The

Claimant has suffered

1)This

amendmen t amounts

1) Not pursued as to:

The Claimant

Amendment pursued as claimed and

psychologicalsymptoms

related to hisexperiencesin the

Emergencyand thetraumas hewas exposedto¹ but hasnot suffered a recognisedpsychological injury,theeffect ofwhich in lawis a matterfor

submission… The Claimant suffers whathe perceivesas²flashbacks and ruminates about how he was physically assaulted during the State of

Emergency.’

to a

pleading

that TC21 has not

suffered psychiatric

/ psychologic al injury. However, it goes on to assert that ‘the effect in law’ of TC21’s

‘symptoms’ is ‘a matter for

submission

’. That is at best

inchoate

and at

worst wholly unclear.

has sufferedpsychological

symptoms

related to hisexperiences

in the

Emergencyand thetraumas hewas exposedto¹ but hasnot suffered a recognisedpsychological injury,theeffect ofwhich in lawis a matter

for

submission…The Claimant will reinstate the original wording and whether the diagnosis is made out will be a matter for submission.

permitted.

See main

judgment paragraphs 7-8. See

TC9.

As to the

perception of

“flashbacks” see the response to TC14.

2)The allegation

that TC21 experiences

‘what he

perceives as flashbacks’ merely pleads TC21’s alleged

2) The

Claimant suffers whathe perceivesas²flashbacks This is pursued; it is

as per the amendment to TC 31 which

D agreed. D

terminolog y (as a nonmedicallyqualified Kikuyu speaker) for an aspect of his psychologic

al experience, without any particulars

of the

intended meaning. Prof

Mezey’s opinion is that TC21 has not

suffered flashbacks [17-175].

has given no good reason for a different approach. The issue will be how the court should treat what TC 21 describes as “flashbacks” but which do not meet the criteria for a such in medical terms. This experience is not irrelevant and can sound in damages: the basis upon which it does so and the extent to which it does is a matter for submissions.

3)If, despite volunteerin

g that TC21 has not

suffered ‘recognised psychologic al injury’, these

amendmen

ts seek to assert or support

some form

of

compensab le injury, such an

allegation

is not

3) as above and as per response to

D’s

Introduction at para 6.

already pleaded in the

Particulars of Injury. The

amendmen

ts therefore fall outside the scope of permission

given in respect of the IPOCs considered in the April judgment. D relies upon Cs’ undertakin

g and the

court’s

ruling in

April relating to injuries not already

falling

within the

Particulars of Injury.

Test

Claimant

Paragra ph

amende

d

Amendment

Agreed?

Claimants’ response

Judge

23 –

Wagichugu

Njuki

7.e.

Fifth oath: athome in

Kiamwathi,

Gatuu

Whilst not an

injury amendment, the parties have agreed that this re-amendment

to §7.e. be addressed by the Court at this stage in the proceedings.

Not agreed.

The amendment to 7(e) was objected to by the Defendant.

The re-

amendment to

TC23 was refused by the Court following submissions. It should be

deleted accordingly.

See Schedule attached to Jt 18.8.17. p.105; D objection to

7e was “in part”. That part of the amendment re change of location that was not permitted (from a Chief’s camp to a punitive village) has been removed; all that has remained is the pleading of the 5^th oath and where it took place. D did not object to 7a, b, c and d which deals with oaths 1 to 4, nor f and g which deals with oaths 6 and 7, including where they took place.

Albeit not made clear by D, it was assumed

Allowed for the

reasons given by

the Claimants

.

that the “part” of 7e that was not objected to was the part that referred to the fact of the oath taking place and where.

To remove

reference to the 5^th oath makes the paragraph lack comprehension, when the TC was clear in her evidence that she had taken 7 oaths [332176] and the pleading makes reference to all but number 5.

8

In or around 1955, the

Claimant -

_was

removed

from her home in

Gatuu,

Kiamwathi

Whilst not an

injury amendment, the parties have agreed that this re-amendment

to §8 be addressed by the Court at this stage in the proceedings.

The Claimants have failed to identify as a reamendment the inclusion of

‘Gatuu’, but for ease it is correctly set out in this Table.

Not agreed:

The express basis of consent

Agreed that §8 needs to be consistent with §5, and the remedy is to strike through “Gatuu” in green.

The original §8 was pleaded “Gatuu, Kiamwathi”; The proposed amendment

(that the court was asked to rule on) was to strike through “Gatuu” in order to be consistent with §5 (D’s rehearsal of the para in this schedule does not show the strike through,

Allowed

as

“Kiamwat

hi in

Gatuu.”

to the re-

amendment of paragraph 8 at the amendment hearing was that it be consistent

with the reamendment at paragraph 5 that Kiamwathi was within Gatuu: “Kiamwathi, in

Gatuu” [3316582]. The

effect of this re-

amendment is, however, to maintain the confusion as to the relative sizes of Kiamwathi and Gatuu.

it shows “Gatuu” in green).

See [33-16582] line 8 – 20. J raises point that §8 needs to be consistent with §5.

So: it is agreed that §8 should be amended consistently with §5, therefore it follows that “Gatuu” should be struck through, in green.

12

Detention &

ForcedLabour:

Kianyaga

Chief’s

Camp

This is a reamendment that was overlooked previously. The Revised Annex to Andrew

Robertson’s 6^th statement made it clear that the Defendant disputed this amendment. Unfortunately, the challenge to

the re-

amendment was omitted from the version of the schedule the

Claimants

supplied when setting out their position on the

Yes, this was overlooked. Para 12 was not ruled upon. 1)The J did not permit any disputed amendments and, in his reasoning, refers specifically to amendments

relating to place of detention in Kianyaga (see p.102 of Schedule to Jt 18.8.17); it follows that the

reference to Kianyaga Chief’s Camp should be reinstated as per

Refused,

as the

Claimants now accept.

Defendant’s objections.

Hence it was

neither discussed at the hearing on 19

July 2017 nor did it appear in the schedule to the Court’s judgment of 18 August 2017. Whilst not an

injury amendment, the parties have agreed that it be addressed by the Court at this stage in the proceedings.

Not agreed.

1) The Court has refused all contested amendments to TC23. This re-

amendment to TC23’s IPOC was objected to by the

Defendant.

The re-

amendment should have been refused.

2) The effect of the re-

amendment would be to leave certain key allegations,

the original pleading.2) as above

3) as above; As per D, sub is repeated for §45 below.

which are

clearly

intended to give rise to causes of

action, materially unparticulari

sed as to location.

3)The reamendment is hopeless, and/or visits prejudice on the

Defendant who will be unable to research and then respond to the substance of the allegation accordingly.

The Defendant repeats these submissions in respect of the corresponding re-amendment to §45(2).

45(2)

(2) Caused, permitted,

allowed or suffered the detention of the Claimant in intolerable conditions, that included extremes of temperature, hunger/starv ation, thirst,

Not agreed. As immediately above.

As immediately above.

Para 45(2) was not ruled upon. However, the J’s ruling did not permit any disputed

amendments

relating to place of detention. It follows that the

reference to “at

Kianyaga”

Refused,

as the

Claimants now accept.

sickness, gross overcrowdin g, a lack of sanitation

and a

pervasive atmosphere of violence, which put her health and safety in danger. In

particular,

but without prejudice to the generality of the

foregoing, the detention facility atKianyaga had not been built when the Claimant arrived. The Claimant was forced to sleep in open air, exposed to the

elements, wearing only the clothes that she had been forcibly removed

from her home in. The Claimant was exposed to temperature extremes,

with no shade by day and no

should be reinstated as per the original pleading.

shelter by night. Sanitation

facilities

were woefully inadequate. Detainees were forced to scavenge for food and water, none being provided to them. Detainees

were not

even provided with any or any adequate cultivable

land to

produce food, causing malnutrition and starvation.

The Claimant had the added fear of looking after her young children in these circumstance

s.

49

Particulars of Injury

Not agreed. See further below.

49

The Claimant is tormented by the memories of her painful ordeal. She has never

Not agreed.

1)The relevance of the allegation as to TC23’s subjective perception of

1) this is in accordance with the agreed amendment to TC 31. D has given no good reason why

This

amendme nt would have been permitted (i.e. as to

‘flashback

recovered from the

announceme

nt that her husband had been killed. She experiences what sheperceives asflashbacks of the trauma she was subjected to;

flashbacks for an aspect of her

psychologica l experience is unclear. TC23 is a nonmedicallyqualified non-English speaker, and her own

perceptions of flashbacks are clinically irrelevant accordingly.

The re-

amendment

should not be permitted accordingly.

2)Without prejudice, to the extent that this averment is sought to be added to raise such an allegation

(which is unclear for the reasons already

given), then such an allegation is one not

already

pleaded in

the

Particulars of Injury. The amendment

their approach is different. The issue will be how the court should treat what TC 23 describes as “flashbacks” but which are not so identified upon expert medical examination [§95 and §96; 19-252]; what she describes is not irrelevant and can sound in damages; the basis on which it does so and the extent to which it does so are matters for submission; 2) her mental torment and the symptoms of psychological disturbance are already pleaded; see response to

D’s

Introduction para 6.

.

s’) – see TC14

above.

However, there is no evidence from the Claimant, whether

in her

witness statement

or oral

evidence which supports flashback

s.

Cf paras 9-13 of the main judgment and TC16 above.

would

therefore fall outside the scope of

permission

given in respect of the IPOCs

considered in the April judgment. D relies upon

Cs’ undertaking

and the court’s ruling in April relating to injuries not already falling within the

Particulars of Injury.

she suffereda lifetimedepressivedisorderduring herdetention,currently inremission¹.The legaleffect of thisis a matterforsubmission.