England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 7th February 2001

MR JUSTICE MAURICE KAY:

1. The Appellant was employed by the Respondents as a supervisor at their store in St. Helens. On 2 July 1993 she was at work in the store when she slipped on a wet floor which had been cleaned a few minutes earlier. She sustained a fracture of the coccyx. In due course she commenced proceedings against the Respondent claiming damages for personal injuries. On 24 May 1997 she obtained judgment, with damages to be assessed. The damages hearing took place before His Honour Judge Mackay in Liverpool County Court on 10 and 11 November 1999. The learned judge was required to resolve an issue of principle between the parties rather than to deal with the precise quantification of damages. It seems that the parties could agree the quantum once the issue of principle had been determined. The issue was a stark one. The case for the Appellant was that, as a result of the accident, she had sustained injuries which, in another person, would have resolved within a few months but which, in her case, resulted in a chronic pain disorder which was permanently disabling. The case for the Respondents was that the chronic pain disorder, although real, was not caused by the accident. The learned judge decided this issue in favour of the Respondents and it is against that decision that the Appellant now appeals to this court.
2. As a result of the accident, the Appellant was off work for eight weeks, returning on 3 September 1993. The Respondents accept that that was a reasonable period of absence. She then remained at work until 1 May 1996 when she left, never to return. The evidence of the Appellant was that ever since the accident she has experienced pain in the area of the coccyx. Her general practitioner advised her to take analgesics whenever she needed them and she did so from an early stage. In the Summer of 1994, she had begun to seek compensation and the Respondents' insurers corresponded with her general practitioner who, on 4 August 1994, wrote to them in the following terms:

"the pain has never cleared completely and it is triggered by standing for any length of time......physiotherapy did not produce any great improvement probably due to the area of bruising. As [her] occupation involves standing for long periods she is on analgesics constantly."

3. In April 1995, she was referred to Mr. Denton, a consultant orthopaedic surgeon at Whiston Hospital, who noted the date of the accident and added

"Since then she has been troubled by low backache and aching in both legs on the lateral side"

4. Three months later, he noted "tenderness over sacrococcygeal joint" The Appellant was referred for physiotherapy and, on 4 October 1995, she received an injection and manipulation in respect of her coccyx. In addition to these clinical attendances (and I am not referring to all of them), she was seeing Mr. Martin Lynch, another consultant orthopaedic surgeon, for medico-legal purposes. From June 1995 onwards he was noting a history of pain "mainly right at the tip of the spine over the coccyx" but also "slightly higher up". In January 1996 he referred to "primarily a case of coccydinia and to some extent awakening of degenerative lumbar disease". An X-ray of the lumbar spine in March 1996 showed "minor osteophytic lipping of L4/5 vertebra". By this time, the Appellant was also seeing Mr. Egdell, a consultant psychiatrist. She had a reactive depressive illness "developed in the last year". She was prescribed antidepressants. Another psychiatrist, Dr. Maru, referred to "psychogenic factors" in June 1996.
5. In November 1996 the Appellant was seen for the first time by Mr. S. K. Thompson, the consultant orthopaedic surgeon instructed on behalf of the Respondents. He found it:

"hard to accept that there is significant tenderness throughout the sacrum......The deterioration in the symptoms and the physical signs suggest that there is an underlying constitutional problem here"

6. The following month, the Appellant was given a further sacrococcygeal injection and a course of acupuncture. In February 1997, Mr. Lynch noted that she was not indicating the lumbar spine as a continuous source of pain. He found himself "lead to the inescapable conclusion that psychological effects appear paramount at this stage." For the next twelve months both the treating clinicians and the medico-legal consultants maintained their observations with similar results. Mr Thompson continued to describe the problems as "constitutional", adding that they "would have been present in any event".
7. On 28 March 1998 the Appellant was examined by Dr. Eric Ghadiali, a consultant neuropsychologist. He concluded that she had developed a chronic pain syndrome as a result of the accident at work; that she was suffering from reactive depression of moderate severity; and that she should attend a pain management course. She proceded to attend such a course in June and July 1998. Thereafter, most of the medical observations were by the psychiatrists and Dr. Ghadiali. In December 1998 the Appellant was examined by Dr. Christopher Thomas, a consultant psychiatrist instructed on behalf of the Respondents. His conclusions were broadly consistent with those of Dr. Egdell and Dr. Ghadiali. He placed more emphasis on a predisposition to experience symptoms of anxiety and depression at times of stress. He diagnosed an obsessional trait to the Appellant's personality. He did not form the impression that she was deliberately trying to exaggerate her symptoms. Dr. Egdell's final report of 28 October 1999 stated:

"If there is no orthopaedic explanation to [the Claimant's] disability, then I would conclude that the ongoing disability is a psychogenic reaction to the accident and its consequences. I would consider that [she] is a genuine witness and not a malingerer. The psychogenic response is not wilful but is a reflection of her basic obsessional personality and need to have strict control of her life. The latter has now been lost."

8. The final pre-trial medical development occurred on 5 November 1999 when Mr. Lynch and Mr. Thompson compiled a joint statement. They observed that the accident had caused a fracture of the coccyx and that a resulting absence from work of eight weeks was "perfectly reasonable". They then added:

"We have given considerable thought to what we believe would be a reasonable recovery period following an injury of this kind, i.e. a healing period of the fracture itself and any associated soft tissue damage around the coccyx and the lumbrosacral spine itself. We have limited this to a period of 9 months. We do not accept that any problems [the Appellant] experienced with her low back in early 1995 or increased problems which prevented her from her continuing working after May 1996 can be attributed to the relevant accident. They would more reasonably be considered to be constitutional."

9. The word "constitutional" is susceptible to a number of uses and misuses in the medico - legal context. However, in the present case it is common ground that it means "not attributable to the accident but caused by some other situation which may or may not be the consequence of the accident". Reduced to intelligible terms, this means that if the Appellant has continued to experience pain in the area of her coccyx since the accident, even if it ceased to be organically generated after a period of time it would still be causally connected with the accident if it was the result of a chronic pain disorder which was itself the consequence of the accident.
10. The learned judge concluded that the Appellant had failed to establish, on a balance of probabilities, that her condition after she gave up work in May 1996 was attributable to the accident. He said:

"She suffered from orthopaedic injuries. Those injuries finished, it is agreed, nine months or so after the accident. By eight weeks she was back at work and two and a half years later she left work. During that period there is, in my view, the absence of evidence which convinces me.....I accept the arguments put forward by counsel for the defendants that there is in this case both a gap in time and a gap in symptomology which is indicative of there being some other cause for the present condition."

11. He described the present condition as "genuine" but, in a somewhat ambivalent passage, added:

"I in fact say this with reluctance, but I say it so that people will know. I am not satisfied that throughout this case we have had a full and frank picture from the claimant about the disability.....I found the claimant to be a genuine person and a person who believes in what she says when she says it, but I am not satisfied that the account given to the medical practitioners at any particular stage is necessarily a frank or truthful account."

12. And later on:

".....I am not satisfied that that attribution [i.e. to the coccyx and the accident] was correct, nor am I satisfied that the account which she has given with regard to the location of that pain is an accurate account and perhaps from time to time is an honest account."

13. The first complaint advanced by Mr. Edis QC on behalf of the Appellant is that the judge could only have found "a gap in time and a gap in symptomology" if he had rejected the Appellant's evidence which was that ever since the accident she had been experiencing pain in the area of her coccyx. He submitted that, doing one's best with the ambivalence of the above passages, the judge must have rejected her evidence on the ground that it was not frank or honest about the location and duration of the pain. This, he submitted, was not a finding open to the judge for a number of reasons. First, it was not the way in which the Respondents had put their case which, at its highest, was that the Appellant was capable of subconsciously slanting information but that this did not mean that she did not believe in the truth of her statements. Secondly, none of the expert witnesses who gave evidence at the trial - Mr. Lynch, Dr. Ghadiali, Dr. Egdell and Dr. Thomas - supported a lack of honesty on the part of the Appellant or considered her to be a malingerer. Thirdly, she had been consistent in her account from beginning to end and the attempts of the insurers to catch her out with repeated video surveillance had not borne fruit. Fourthly, the case for the Respondents, as carefully put by Mr. Feeny in this Court, is that the Appellant had continuously complained of pain in the area of the coccyx and that she was genuine in her belief as to its site and its origin in the accident but that she was simply wrong because the probability is that she was misinterpreting pain which was or may have been radiating downwards from the degenerative lumbar disease higher up. This case is not the one accepted by the judge, nor was it put to or advanced by any witness. Fifthly, it is unrealistic to suggest that the Appellant was mistaken about the source of her pain when, at the material time, the treating doctors apprehended no such mistake: for example, Mr. Denton who was her orthopaedic consultant between April and October 1995 and who saw fit to treat her coccyx by manipulation and injection.
14. These are formidable submissions. Mr. Feeny was acute in his appreciation that the rather subtle case which he sought to advance is not apparent in the judgment of the learned judge. He went so far as to concede that the judgment is "difficult to comprehend on its own" but he submitted that it was "not impossible" to support it when it is considered in the light of the evidence and alongside some of the comments which fell from the learned judge in the course of submissions. This, it was suggested, is a permissible exercise in the circumstances of this case, falling the other side of the line from the attempt to rewrite the judgment in Coleman v. Dunlop Limited [1998] PIQR P398. I do not accept this submission. Taking the judgment and the comments of the learned judge during submissions together, it is quite clear that he came to the conclusion that there was a significant gap in symptomology and that, in reaching that conclusion, he rejected a crucial part of the Appellant's evidence. I have no doubt that he appreciated that that was what he was doing and that is why he proceeded to doubt her frankness, her truthfulness and her honesty. However, neither on the way that the Respondents' case had been put nor on a fair appraisal of all the evidence and material in the case was there a proper basis for his so doing. I suspect that that accounts for the ambivalence to which I have referred. These features in themselves compel me to the conclusion that the judgment cannot stand and the appeal must be allowed. Quite simply, the judgment did not do justice to the real issues in the case.
15. The next question is whether it is necessary for there to be a retrial or whether this is a case in which it would be appropriate for this Court to reach a decision on the issues in the case. A retrial would be the more usual outcome but, having regard to the way in which the case for the Respondents is now put, embracing the concession that there was no significant gap in relation to the Appellant's genuine complaints about pain in the area of her coccyx, simply a mistake about its cause and/or location, I take the view that the interests of justice do not require a retrial in this case. When one stands back and addresses the reality, the only ways in which the Respondents could hope to succeed on a retrial would be either to impugn the Appellant's honesty (an approach which they have properly discounted) or to advance the subtle case which Mr. Feeny has advanced on this appeal but which was not advanced in the original trial in quite that form, although the opportunity existed. For my part, I do not consider that there is a realistic prospect of such a case succeeding on a retrial. In saying that, I have it well in mind that the burden of proof is on the Appellant. However, if the case which would be advanced on behalf of the Respondents at a retrial is one which was not fully put when the opportunity existed at the original trial and when an objective assessment of its prospects of success is that it has none, the interests of justice are against a retrial and in favour of this Court deciding the outstanding issues in favour of the Appellant. I would therefore find that the Appellant's chronic pain disorder was caused by the negligence for which the Respondents are liable. As I understand it, if the issue of principle were to be resolved in this way, the parties would be able to quantify the damages without further assistance from the Court.

LORD JUSTICE WARD:

16. I have had the advantage of reading a draft of the judgment of Mr Justice Maurice Kay and I agree with him that the appeal should be allowed for the reasons he gives. I only add these few words in deference to the learned judge with whose judgment on matters of fact we feel impelled to disagree.
17. I am acutely conscious that this court should attach the greatest weight to the opinion of a judge, especially one experienced in the class of litigation to which the action relates, who saw the witnesses and heard their evidence. Consequently we should not disturb a judgment of fact unless satisfied it is unsound. An observation of Lord Shaw in Clarke v Edinburgh & District Tramways Co. Ltd. quoted with approval by Viscount Sankey L.C. in Powell v Streatham [1935] A.C. 243, 256:-

"Witnesses ... may have in their demeanour, in their manner, in their expression, in their hesitation, in the nuance of their expression, in even the turn of an eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page."

18. The approach of the appellate court is well settled but I have reminded myself of it by rereading Watt or Thomas v Thomas [1947] A.C. 484.
19. There is, however, another line of recent authority culminating in Flannery & Anr v Halifax Estate Agencies Ltd. (t/a Colleys Professional Services) [2000] 1 WLR 377 that "today's professional judge owes a general duty to give reasons" for his or her conclusion. Henry L.J. made the following general comments on p.381/2 on that duty to give reasons:-

"(1) The duty is a function of due process, and therefore of justice. Its rationale has two aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost ...

(2) ... want of reasons may be a good self-standing ground of appeal ...

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter ...

(4) This is not to suggest that there is one rule for cases concerning the witnesses truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of a judge to do so; and that will differ from case to case. Transparency should be the watchword."

20. Thus the rule is well established by the third proposition in Lord Thankerton's speech in Watt or Thomas v Thomas where, dealing with when the Court of Appeal may intervene, he said:-

"III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of having seen and heard the witnesses, and the matter will then become at large for the appellate court."

21. It is, therefore, necessary to see what reasons, if any, were given by the trial judge for his conclusion. The following passages, which I shall number, are pertinent:-

"(1) This case has been a long and complicated case involving a number of witnesses. I have heard the claimant. I have also heard the claimant's sister, Mrs Grogan, and I have heard from Mr Lynch, the orthopaedic surgeon. Most importantly I have heard psychological evidence, because this is a case where the claimant is alleging that the psychological condition has been caused by the accident. I have heard from Doctor Ghadiali, a well known and respected local practitioner and consultant who runs the Pain Relief Clinic, who had dealings with the claimant and who gave helpful evidence. I have also heard from Doctor Egdell who was the claimant's psychiatric witness and also Doctor Thomas for the defendant.

(2) ... It seems quite clear to me that the claimant was a lady who had prior to the accident, a considerable number of sources of disturbance in her life of a psychiatric nature ... therefore she was a person with a history.

(3) (She saw Doctor Egdell and he made a report in March 1996. She gave up work in May 1996 ... Doctor Egdell has no doubt that the pain disorder, that disability, has two aspects. First of all, and it is not controversial, ... her condition - and this was confirmed by the claimant - is no better than it was in 1996 and often worse.

(4) Secondly, Doctor Egdell considers that the pain condition, that moderate psychological disturbance which can be seen first as irritability and then depression and then a moderately severe psychological illness, can be laid fairly and squarely at the doors of the defendants and of their wet floor, and there is no other explanation for it. As Doctor Egdell says: "One followed the other". I do not accept that. I do not accept that the claimant's condition has been caused by any activity of the defendants or of the accident itself.

(5) She suffered from orthopaedic injuries. Those injuries finished, it is agreed, nine months or so after the accident. By eight weeks she was back at work, and two and a half years later she left work. During that period there is in my view the absence of evidence which convinces me.

(6) The burden of proof is upon the claimant. She must prove her case on the balance of probability. Therefore I have to be satisfied on the balance of probability that the condition which the claimant alleges occurred after she gave up work was the responsibility of the accident and therefore the negligence of the defendants, which negligence for the accident is admitted. She has failed to do so.

(7) I accept the argument put forward by counsel for the defendants that there is in this case both a gap in time and a gap in symptomology which is indicative of there being some other cause for the present condition. Her present condition is genuine, she was a vulnerable person. It may well be, as Mr Feeny has said, that she is seeking to attribute everything to the accident and to the fall.

(8) I say this with reluctance, but I say it so that people will know. I am not satisfied that throughout this case we have had a full and frank picture from the claimant about her disability.

(9) I am not satisfied that the cause and effect which the claimant claims and has claimed throughout this case has been made out. I found the claimant to be a genuine person and a person who believes in what she says when she says it, but I am not satisfied that the account given to the medical practitioners at any particular stage is necessarily a frank or truthful account.

(10) I am satisfied, however - and I would be stupid if I was not satisfied - that she continued to experience some discomfort, some pain and, according to her, serious discomfort and serious pain requiring a walking stick at a relatively early stage in the proceedings which she attributed to the coccyx, which she attributed to an accident, but I am not satisfied that the attribution was correct, nor am I satisfied that the account which she has given with regard to the location of that pain is an accurate account or perhaps from time to time an honest account."

22. It is apparent from paragraph 1 that no criticism is made of the evidence which the judge regarded as important evidence given by Doctor Ghadiali who was treating the claimant at the Pain Relief Clinic. His evidence is described as "helpful".
23. In paragraph 2 he finds the claimant to be "a person with a history". He does not, however, find that history to be causative of her condition. He does not relate that to the report of Doctor Thomas who in the summary and conclusion of his written report writes:-

"This history suggests that Mrs Lougheed was predisposed to experience symptoms of anxiety and depression at times of stress ... When change is forced upon an individual e.g. the accident on 2.7.93. and subsequent pain symptomology, the individual often has difficulties in adapting to this change and is at higher risk of becoming depressed."

24. In paragraph 4 he rejects Doctor Egdell's conclusion that the pain condition was caused by the injury. In my judgment the crucial issue in the appeal is the reason for his rejecting that opinion. As I have already indicated, it is not his preference (still less a reasoned preference) for the view of Doctor Thomas. He passes no judgment on the differences of view in the psychological evidence which he recognised to be most important. Although he refers to the burden of proof in paragraph 6 and states that the claimant failed to satisfy him on the balance of probabilities, this is not a case where a judge has said (weakly), "There is a conflict of evidence and I simply cannot make up my mind therefore the claimant loses because she does not establish her case on the balance of probability". His Hon. Judge Mackay rightly does not take that way out of the difficulties in the case. He gives two reasons for her failure to satisfy him.
25. The first is in paragraph 7 where he accepts the defendant's case that there is "both a gap in time and a gap in symptomology which is indicative of there being some other cause for the present condition". One makes two observations about that. Firstly he does not say what the other cause is. Secondly the gap to which he refers is the gap identified in paragraph 5 being the gap between her return to work after eight weeks and her giving up work two and a half years later. He was convinced by "the absence of evidence" during that period.
26. The second reason for finding against the claimant is expressed in paragraph 8, namely his not being satisfied that he had had "a full and frank picture from the claimant about her disability". He restated that in paragraph 9 observing that he was not satisfied that the account she gave the medical practitioners was necessarily a frank and truthful account. He said again in paragraph 10 that he was not satisfied that her attribution was correction nor her account given with regard to the location of pain was accurate or honest. Thus, although the judge in paragraph 8 kindly (and I praise him for this and do not criticise him for it) tried to soften the bitter pill of his finding, the only reading of his judgment as a whole is that he found the claimant to be less than honest in her evidence. I remind myself again how difficult it is to interfere with such a conclusion. But I am impelled to continue the analysis.
27. Dealing with the first reason, the judge found there was an absence of evidence of pain being suffered between the return to work and the termination of her employment. That is simply not right. On the agreed medical evidence her symptoms should have alleviated by about early April 1994, give or take a month or two either way. Four months later in August of 1994 the general practitioner was writing "The pain has never cleared completely ... Physiotherapy did not produce any great improvement ... As the patient's occupation involves standing for long periods she is on analgesics constantly." In June 1995 Mr Lynch in his first report recorded the history as follows:-

"At the present moment Mrs Lougheed tells me she still has pain and, in fact, allowing for the fluctuations in intensity there has really been no improvement compared to the initial few months after the accident. The pain is mainly right at the tip of the spine over the coccyx but she also suffered low back pain on both sides slightly higher up."

28. His conclusion was:-

"Almost exactly two years ago this lady tripped and fell on a wet floor landing on her buttocks. This would appear to have produced a fracture of the coccyx which has given her fluctuating pain ever since. Today there is clinical evidence of continuing pain arising in that area as she is tender to quite light palpitation. However, she is also tender in the lower lumbar spine and I gather she has been referred to Mr Denton for both conditions." (Emphasis added).

29. As a result of that referral she was receiving injections and manipulation to the coccyx in October 1995. She first saw Doctor Egdell, the consultant psychiatrist, in March 1996 when he reported:-

"From the psychological point of view the most important consequences of the accident were the continuing intractable pain despite multiple treatment. Mrs Lougheed was able to work despite the pain. The second and most important psychological stress was the realisation in 1994 that no treatments were going to be effective."

30. I am therefore driven to the conclusion that when the judge said there was an absence of evidence and a gap of two and a half years between her return and her leaving work, he was simply wrong. There was abundant evidence that she was in continuous pain. He then held there was a "gap in symptomology". A reading of the medical reports indicates consistent complaint of persistent pain over the coccyx, the main area at which treatment was offered. There was also consistent complaint but of intermittent pain from the lower back area. I see no basis for his conclusion. Turning to the more difficult question of her credibility the first difficulty I have in understanding the judge's reasons are that there is an inconsistency between his finding the claimant to be a genuine person who believes in what she says when she says it and his finding that she was not honest with the medical practitioners. They never doubted her honesty. They were not challenged about this. She was not challenged about it. It seems to me difficult to understand on what basis the judge could challenge her account of the location of her pain when for years the doctors were treating pain in the coccyx and even contemplating surgical intervention there. I can find no justification whatever for saying this lady did not know her coccyx from her lumbosacral spine. Or, putting it more colloquially, her backside from her lower back. For these reasons, as well as the reasons so well expressed by my Lord, I am bound to conclude that the appeal must be allowed.
31. The difficult question then arises whether we should send this matter back for rehearing. For the reasons given by my Lord with which I agree and which I do not need to supplement, I conclude that the justice of this case requires that we find that the claimant's pain disorder was caused by the accident and the negligence of the defendants. We will hear counsel as to the precise form of order that should be drawn. I hope that damages may be agreed if not by the time we hand these judgments down, then within such a short time thereafter as we could leave the order to be drawn for a few days so that judgment could be entered in the claimant's favour. If agreement cannot be reached, then the matter will have to be remitted for an assessment of the amount of damages to which the claimant is entitled.
Order: Appeal allowed. Order of His Honour Judge Mackay of Nov 11/99 set aside, case remitted to Liverpool County Court for assessment of damages on the basis that the pain disorder from which the Claimant has suffered was caused by the accident on 2^nd July 1993; the case be listed before the designated circuit judge in Liverpool for further directions as to disposal; the defendants to pay claimants' costs of the action to date and appeal subject to detailed assessment, basis of assessment to be decided by Trial Judge. (This order does not form part of approved judgment)