Case No: C1/2006/1172
Neutral Citation Number: [2007] EWCA Civ 797
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN’S BENCH DIVISION
(MR JUSTICE CULVERT-SMITH)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 5th July 2007

Before:

LADY JUSTICE SMITH 
 LORD JUSTICE JACOB
and
LORD JUSTICE WALL
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Between:

	THE QUEEN ON THE APPLICATION OF GARG	
Appellant	
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THE CRIMINAL INJURIES COMPENSATION AUTHORITY	

Respondent	

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Mr R Jay QC (instructed by Messrs RJ Rosen & Co) appeared on behalf of the Appellant.

Mr J Coppel (instructed by Treasury Solicitors) appeared on behalf of the Respondent.

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Judgment
Lady Justice Smith: 

1.	This is an appeal from the decision of Calvert Smith J, who refused the appellant’s renewed application for judicial review.  Permission to appeal on a single ground was granted by Ward LJ in August last year; two other grounds were adjourned to be heard on notice with the appeal, the appeal on those grounds to follow if granted.  

2.	The appeal and the application arise from the assessment of compensation made by the Criminal Injuries Compensation Authority (the Authority) in June 2004 for injuries which were sustained by Dr Ravindra Garg as long ago as 1992.  At that time, Dr Garg was working as a locum consultant psychiatrist at New Cross Hospital in Wolverhampton.  He was attacked by a patient within the hospital and suffered serious head injuries.  These injuries have affected his life in many ways, not least of which is that he has not been able to work ever since.

3.	In 1994, Dr Garg applied to the Criminal Injuries Compensation Board, as it then was.  His claim was accepted; there was to be a hearing for compensation assessment.  This was fixed initially for 25 September 1995, but was adjourned at the appellant’s request to allow further time for preparation.  A hearing fixed for December 1996 was adjourned because a solicitor had recently been instructed by Dr Garg and further time was required for preparation.  

4.	Compensation was assessed in September 2000 but Dr Garg was dissatisfied, it seems with good reason.  He brought proceedings for judicial review, whereupon the respondent Authority undertook to hold a fresh hearing.  That was fixed for 23 October 2002, but was then adjourned on the ground that the appellant was medically unfit to represent himself and wished to instruct a solicitor.  On this occasion, the Authority’s panel directed that this was to be Dr Garg’s last chance to obtain representation.  He was granted an interim payment (he had already received a number in the past) to be released to a nominated solicitor upon proof that the work had been done. 

5.	The appellant nominated a solicitor named Mr Brown.  The Authority did not hear from Mr Brown, so on 25 September 2003 it directed that:

“No later than 19 December 2003 the applicant or his representative must lodge with the Authority a full schedule of the applicant’s claim for financial loss with all supporting documents.”

6.	On 25 November 2003, Mr Brown withdrew from his arrangement to represent Dr Garg; there had been a disagreement between them.  The Authority became aware of this and on 2 December it ordered that the schedule and documents must be lodged within the time previously allowed.  If any extension were to be sought, the Authority wished to be told of it forthwith and the applicant would have to give reasons why the case should not be heard in the week beginning 2 February 2004.

7.	In the event, the hearing was listed for 16 June 2004.  Two days earlier, Dr Garg asked for an adjournment on the ground that he was not ready for the hearing and was unrepresented.  He wanted another opportunity to instruct a solicitor and to have a schedule of loss prepared.  That request was refused.

8.	A panel of the respondent Authority’s members assessed the compensation on 16 June, on the basis of the information that was then available and without the benefit of a schedule of loss.  Dr Garg appeared in person.  The award comprised £60,000 for pain, suffering and loss of amenity; £283,500 for loss of earnings to the date of the hearing; £68,750 for loss of future earnings to the age of 60 (which the Panel took as the date on which Dr Garg would have retired); £40,000 for the loss of the chance of working after the age of 60; £99,472 for the loss of pension income; and £22,843 for the loss of the associated lump sum.  From that, benefits received in the past and to be received up to the age of 60 had to be deducted.  The final award came to £351,607. Interim payments totalling £92,000 had been made on various occasions over the years.  The net award made on 16 June was for just short of £260,000.

9.	Dr Garg was disappointed with this award and made a number of further enquiries, as a result of which he collected evidence which might well have resulted in a higher award if it had been put before the Panel at the hearing.  On 28 September 2004, Dr Garg applied for permission to seek judicial review.  His application was out of time.  One of his main complaints was that the Panel should have allowed an adjournment so that the material he had now collected could have been deployed.  The application was refused by Sullivan J on 23 November 2004.  On a renewed application on 28 July 2005, in Dr Garg’s absence, Ouseley J refused permission but his decision was set aside because Dr Garg explained that he had not been informed of the hearing date.  The renewed application was refused by Calvert Smith J on 18 May 2006 and it is from that decision that this appeal and application arises.

10.	Dr Garg sought permission to appeal, filing lengthy grounds of his own drafting.  However, by the time the papers were put to Ward LJ in August 2006, a skeleton argument drafted by Mr Robert Jay QC dated 3 July 2006 had been filed.  Mr Jay conceded that many of the grounds advanced by Dr Garg were not viable.  He accepted that no complaint could be made about the fact that Dr Garg had been unrepresented at the quantum hearing and that, as a result, his case had not been presented in the level of detail which it had warranted.  No complaint, he accepted, could now be made about the final refusal to grant an adjournment.  He accepted that the appeal would have to be considered on the basis of the material that had been available to the respondent Authority in June 2004, and not on the basis of the additional material which Dr Garg had assembled since that time. 

11.	However, Mr Jay invited the Court to make allowances for Dr Garg.  He observed that it was possible that the respondent Authority and Calvert Smith J had not appreciated the degree of Dr Garg’s psychiatric disability, which was entirely the result of the injury; he submitted that this may have caused Dr Garg to behave in a way which might have appeared stubborn or intemperate.  I would wish to say at once that we do very much appreciate the difficulties under which Dr Garg must have laboured in presenting this case himself.  We have read some of the psychiatric evidence, in particular a report of Dr Henderson.  We do understand the severity of the injury and the long-term consequences that have resulted and we recognise and accept without reservation how very difficult it must have been for Dr Garg himself to present his case before the Panel.   Having said that, Mr Jay was plainly right in conceding that no complaint could be made about the refusal of the final adjournment as requested.  Dr Garg had had many opportunities to arrange representation and to obtain the information needed to make out his case.  

12.	Mr Jay advanced only three grounds for seeking judicial review.  The three were:	

(1) That the respondent’s panel had approached the quantification of Dr Garg’s earnings as a locum psychiatrist in a way that was without evidential foundation.  

(2) That the approach to quantification of the claim for future loss after the hearing date was perverse.

(3) That the pension loss calculation was also perverse.  

As I have said, Ward LJ granted permission only in respect of the pension calculation.

13.	I would mention that Ward LJ does not appear to have dealt with the need for an extension of time, but having read Mr Jay’s explanation for the short delay in filing the application we are minded to grant an extension of time in any event.  It seems likely that Ward LJ intended but omitted to do so. 

14.	At the hearing today, Mr Jay appeared for Dr Garg and Mr Jason Coppel for the Authority. We are grateful to counsel for the clarity of their submissions and the moderation with which they have been advanced.

15.	Before turning to the grounds of appeal, it is necessary to give a little background. Dr Garg was born in India in 1947.  He qualified there in 1970 and came to the UK in 1973.  He was fully registered with the General Medical Council in 1974.  Thereafter, he held various NHS posts in psychiatry at SHO and Registrar level.  On three occasions, in 1976, 1977 and 1978, he took but failed the Part 1 examinations for membership of the Royal College of Psychiatrists which, since 1997, has almost always been required as a prerequisite for admission to the General Medical Council Specialist Register, which in turn has been a prerequisite for substantive appointment at consultant level in the NHS.

16.	In due course, (the exact date is not clear) Dr Garg obtained a locum consultant psychiatrist’s position in the Birmingham area.  He then moved to a similar position at New Cross Hospital in either 1991 or 1992.  Those locum positions were intended to be temporary contracts. However, the Panel accepted Dr Garg’s evidence that there was a shortage of psychiatrists in the National Health Service and there would have been plenty of locum positions open to him.

17.	In October 1992, as I have said, Dr Garg was attacked by a mentally disturbed patient.  I have already described the serious consequences of that attack.  The effects have included post-traumatic stress disorder, leading to chronic depression and personality change.  

18.	The claim for compensation in this case was brought under the Criminal Injuries Compensation Scheme of 1990.  That has now been superseded but it must be applied in this case.  The assessment of compensation under that scheme was to be in accordance with common law principles, although with some modifications which will not be of any importance in the context of this case.  

19.	The approach adopted by the Panel to loss of earnings was the conventional multiplicand and multiplier approach.  So far as loss of earnings to the date of hearing was concerned, the Panel had before them wage slips showing that at the time of his injury Dr Garg was earning £44,000 gross.  It appeared that the Panel also had some earnings data -- we are not sure exactly what this was -- which showed that consultant grade earnings for the year 2004 began, at the lowest end of the scale, at about £55,000 a year.  Dr Garg sought to persuade the Panel that he would have achieved consultant status at some time between 1992 and 2004, but the Panel rejected that.  He had failed the examination three times and they considered it improbable that he would ever have passed it.  They considered that, as a locum consultant, he would have been paid at the lowest level of consultant earnings.  Thus they concluded that his earnings as a locum would have risen gradually over the eleven and-a-half year period from £44,000 a year in 1992 to about £55,000 in 2004.  They took £49,000 as an average gross salary over that period.  They deducted an appropriate percentage for tax and national insurance and found a net multiplicand of £31,000 a year. They applied a multiplier of 9. Although the period of employment under consideration was eleven and a half years, they were of the view that Dr Garg would not have been in continuous employment during that time.  No complaint is now made on the application of the multiplier adopted.  

20.	However, two criticisms were made of the approach to the multiplicand.  First, it was said that the Panel was not entitled to assume that, as a locum, Dr Garg would have been paid at the lowest consultant rate.  This, it was argued, was demonstrably wrong, as could be seen from the salary rates set out in the NHS Terms and Conditions effective from April 1994.  This document purported to show that consultants described as ‘other consultants’ were to be paid in that year at an annual rate of £46,540.  It was submitted to us that ‘other consultants’ meant or included locum consultants.  We were referred to the scale for substantive consultants which showed that the annual rate of £46,540 represented approximately the mid-point on that scale. Therefore, it was argued, the Panel must have been wrong to take Dr Garg’s salary as the lowest point on the scale.

21.	The problem about this submission was, first, that it was not at all clear whether the Terms and Conditions for 1994 had ever been put before the Panel at all.  Indeed, there was before us a factual dispute as to whether that document had been put in.  Written statements were put in by each side and we agreed to receive that evidence.  Dr Garg claimed that he had obtained the Terms and Conditions in advance of the hearing, although he had not submitted the document to the Authority. He claimed that, on being shown a document recently obtained by the Authority, he realised that he would need to produce the Terms and Conditions and he did so. Therefore the Panel should have take that document into account.

22.	The Authority put in a statement made by Miss Diana Cotton QC who had been the chairman of the Panel.  She said that the Terms and Conditions had not been produced and the Panel had not seen them.  The case files held by the Authority had been examined carefully and no copy of the document had been found.  That was the main basis on which the Authority submitted that the document had not been put in.  However, Mr Coppel drew attention to the fact that, in his original claim for judicial review, Dr Garg had submitted that the Panel had erred because it had not been aware of some information which was, in fact, to be found within the Terms and Conditions.  Mr Coppel submitted that this suggested that, at that time, Dr Garg had not been suggesting that he had put the Terms and Conditions before the Panel.  Further, Mr Coppel submitted that the letter which Dr Garg had said triggered the production of the Terms and Conditions by him would not plausibly have had that effect upon him.  The letter to which he had referred had been from the Royal College of Psychiatrists; it dealt with the question of whether Dr Garg (who was not a member of the College) would ever have been appointed to a substantive consultant post as opposed to a locum post.  Mr Coppell submitted that it was hard to see why that letter would have prompted Dr Garg to produce the Terms and Conditions document. 

23.	For my part, I am not able to accept that the Terms and Conditions were ever put before the Panel.  I am persuaded by the reasons advanced by Mr Coppel.  I do not for a moment doubt the honesty and genuineness of Dr Garg’s recollection that he put the document before the Panel; I think he is mistaken in that respect.  Even if I had been prepared to hold that the document had been put before the Panel, I am by no means convinced that it would have had the effect of persuading the Panel that Dr Garg would have been on a higher salary scale than they held he would have been.  However, I do accept that, if the document had been put in and if Dr Garg had directed the Panel’s attention to all the relevant provisions, it might have made a difference to the result.  That said, I have held that the document was not before the Panel.  The Panel had to assess the loss of earnings to date on the basis of the information before them and, in the absence of any information to the contrary, the inference that they drew that locum consultants would be paid at the lowest level on the scale was not unreasonable.  

24.	Mr Jay also submitted that a document received from the Pensions Agency in 1996 should have put the Panel on notice that they were underestimating Dr Garg’s past earnings.  I have examined that document which is at page 150 of the bundle.  It explains how Dr Garg’s pension entitlement was to be calculated.  Mr Jay submitted that it was possible to work out from that letter roughly what Dr Garg’s notional pensionable salary was in 1996.  It was more than the figure which the Panel was notionally attributing to him as his salary for 1996.  Mr Jay submitted that the Panel should have examined this letter carefully and should have carried out a cross-check on the figure that they had arrived at.  

25.	I cannot accept that submission.  The letter from the Pensions Agency was before the Panel for the specific purpose of helping them to assess pension loss.  No-one suggested to them that they might use other information contained in that letter for the purpose of carrying out a completely different process, namely a cross-check on their conclusion in respect of the past earnings rate.  

26.	In my judgment, it cannot be said that the Panel’s approach to the assessment of past loss lacked evidential foundation or was perverse.  In my view, the calculation was entirely appropriate given the information provided.  

27.	A second argument was advanced under ground 1.  It was that the Panel was wrong to hold that Dr Garg would not have obtained a substantive consultant post.  Plainly, if he had obtained such a post his earnings would have been higher.  It was submitted that the Panel was labouring under the misapprehension that, at all material times, it was necessary for a doctor to have membership of the Royal College of Psychiatrists in order to qualify for a substantive consultant post.  In fact, we are now told (and I am prepared to accept) that, until 1997, that was not necessary; ordinary registration with the GMC would suffice for eligibility for a substantive consultant post.  

28.	The letter on which the Panel relied for information was from the Royal College of Psychiatrists.  I have already referred to it.  It explained that appointment to a substantive consultant post was limited to those on the General Medical Council Specialist Register.  Entry to that register was given only to those who had completed higher specialist training.  Membership of the Royal College was a prerequisite of entry to higher specialist training.  What the letter did not say was that those are the rules which have applied since 1997; nor did it say that, before that date, there were no such rules. It did not say that a doctor who was registered at the GMC was eligible for appointment to a consultant post; nor did it say anything about the chances that a doctor who was not a member of the Royal College would have of obtaining a substantive appointment before 1997.  Thus it was argued that the Panel had acted on a wrong basis in saying that Dr Garg would have had no chance of being appointed to a substantive consultant post because he was not adequately qualified.  

29.	As to that, I would say two things.  Insofar as there may have been a misunderstanding of the rules, it was for Dr Garg to put the rules before the Panel so that they were properly informed.  In any event, it seems to me that, even if they had known the rules, the Panels’ conclusion as to Dr Garg’s prospects of substantive appointment might well have still been justified.  The fact that a doctor did not have membership of the Royal College must have put him at a substantial disadvantage, even before 1997 when seeking a substantive post and it is likely, as it seems to me, that the Panel would have reached the same conclusion in any event.

30.	In short, I see no merit in this submission and I would refuse permission to appeal on all aspects of ground 1.

31.	I turn to ground 2.  This concerned the calculation of loss from the date of the hearing (when Dr Garg was aged 57 and-a-half) until the date on which he would have ceased work, but for the injury. The assessment comprised two elements: first, the salary loss to the age of 60, which the Panel took as the date on which he would have retired from full time work and second, the loss of the chance of earnings after retirement, which, as I have said, was assessed at £40,000.

32.	For the first period, the Panel took a multiplicand of £34,375 net, which was related to the gross salary of £55,000 applicable in 2004.  They applied a multiplier of two, which was not inappropriate if Dr Garg was to retire at 60.  

33.	Mr Jay’s complaint was that the Panel could not properly have concluded that Dr Garg would have retired at 60 if he had not been injured; they should have found that he would probably have retired at 65.  Mr Jay submitted that it was well known that 65 was the normal retiring age for doctors.  He also pointed to the Terms and Conditions, to which I have already referred, which provided that all contracts of employment would come to an end at the age of 65 and that any employment thereafter would be on a temporary basis.  Of course, reliance on the Terms and Conditions presupposes that they had been put before the Panel, and I have already said that I do not accept that they were.  Nor can I accept Mr Jay’s alternative proposition that it is a well-known fact, such that the Panel should have taken judicial notice of it, that most doctors retire at 65.

34.	In any event, Mr Coppel submitted that the Panel had made no finding about the normal retirement age of doctors.  They had held only that Dr Garg personally would have retired at 60.  They had so held for good reasons: Dr Garg was at considerable disadvantage in the medical labour market; he was not fully qualified as a consultant; he would never have held a substantive consultant post and he would have found it more difficult to get employment as he was ‘past retirement age’. Mr Coppel submitted that that expression meant no more than that the Panel thought that Dr Garg would find it more difficult to find locum work as he got older.

35.	Mr Jay seized upon the expression ‘past retirement age’ as showing that the Panel had assumed a normal retiring age of 60.  He drew attention to the letter that the Authority had received from the Pension’s Agency which said that Dr Garg’s deferred pension entitlement would be available for him when he reached the age of 60.  He submitted that the Panel had been misled by that into thinking that 60 was the normal retirement age.  However, as Mr Coppel pointed out, the letter did not say anything about a normal retirement age.  It said only that Dr Garg’s deferred pension could be taken when he reached the age of 60.  

36.	I, for my part, am quite satisfied that the Panel’s finding related to their view of Dr Garg’s personal retirement date and was not influenced by any belief or impression that they thought that 60 was a normal retirement age. In my view, there is nothing to suggest that the Panel misunderstood the position or thought that the mere fact that Dr Garg could take his deferred pension at the age of 60 meant that 60 was the normal retirement age.

37.	Mr Coppel submitted that we were entitled to examine and heed an explanation which the Panel had sent to Dr Garg after the hearing when he had queried this aspect of their decision.  Mr Jay submitted that we could not look at reasons given after the event; we ought to confine ourselves to what had been said in the Panel’s original decision.  I, for my part, cannot see any objection to looking at this particular letter of later explanation.  It does not advance any different reason from those set out in the original decision; it simply expands upon the same reasons that were given in the original decision.  But even without this letter, I am unpersuaded that there is any error of approach and the decision in my view was far from perverse.

38.	I turn to the issue on which Ward LJ gave permission to appeal, the calculation of pension loss.  The Panel took as their starting point their previous finding that Dr Garg would have retired at 60.  Mr Jay accepted that that was an advantageous finding, so far as the pension calculation was concerned.  The Panel noted that they had very little information on which to assess the pension loss which was due to the injury and the premature cessation of work.  They had only the letter from the Pensions Agency dated October 1996.  That showed that the projected pension at the age of 60 was expected to be £8,316.72 a year and that the anticipated lump sum was expected to be £24,950.16.  

39.	The Panel noted information provided in the letter that Dr Garg had given 12 years and 254 days actual service to the NHS.  They then sought to do the best they could to assess the annual differential pension between what Dr Garg would have received if he had worked until the age of 60 (contributing to the pension scheme for about another 11.5 years, which would have been the period which he would, on their findings, have worked) and what he will in fact receive.  They assessed that at £8,000 a year gross, yielding £6,400 net.  The Panel applied a multiplier of 14.8. That appears to be a whole life multiplier derived from Ogden tables; no criticism is made of it. 

40.	As for the lump sum, again the Panel noted that there was a shortage of information but doing their best they assessed the shortfall at £24,000 to which they applied a modest discount for accelerated receipt; no complaint is made about that.

41.	Mr Jay contended that the Panel had wrongly assumed that the pension scheme was a contributory scheme when in fact it was a final salary scheme.  One could tell, he said, that they had made that mistake because of the way they expressed themselves in their reasons.  They said this:

“Dr Garg claims a loss of pension but we have very little evidence on which to base an award.  After eleven and a half years we are not disposed to allow any further time for any more evidence to be presented to us.  We therefore assess this loss on the basis of the letter from the NHS Pensions Agency, dated 2 October 1996, on the basis that the pension contribution, since the days of the assault, would have been at a higher level than those he had previously made, but the later contributions have less effect on the overall value of the pension.  We conclude that the annual loss of pension would be of the order of £8,000 gross.”

42.	Mr Jay drew attention to the passage which I have just read, relating to the Panel’s view that the pensions contributions made recently would have been at a higher level than those made earlier, but the later contributions would have had a lesser effect on the overall value of the pension because they had not been in the pension fund for so long.  Mr Jay infers from that, in my view not unreasonably, that the Panel was under the impression that this was a contributory pension scheme rather than a final salary scheme. Mr Jay’s difficulty was that he had to concede that the Panel had not been shown the pension regulations, which demonstrated that this was indeed a final salary scheme.  It was, therefore, he accepted, difficult to criticise them for approaching them as they have done.  

43.	I, for my part, found it difficult to see how the Panel’s approach could be criticised, given the information they had had.  However, I was anxious to discover whether the error into which the Panel had innocently fallen could have a substantial difference to the result. At my invitation, the court and Mr Jay carried out a rough and ready calculation of what difference it would have made had the Panel appreciated that this was in fact a final salary scheme and not simply a contributory scheme.  Having done what we had to describe as a “back of the envelope calculation”, we arrived at a figure which was not very much in excess of the figure arrived at by the Panel and which had, in fact, been awarded.  

44.	Accordingly, my conclusion is that even if the Panel had erred in law in their approach to the calculation, I would not grant judicial review on discretionary grounds because I do not think that any error which might have been made has produced any real injustice. 

45.	For those reasons, I would refuse the applications under grounds 1 and 2 and dismiss the appeal on ground 3. 

Lord Justice Jacob:	
46.	I agree.

Lord Justice Wall:
47.	I also agree.

Order: Appeal dismissed.