England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(His Honour Judge Grenfell)

		Royal Courts of Justice Strand London WC2 Tuesday 20 March 2001

Tuesday 20 March 2001

1. MR JUSTICE BENNETT: The appellant, Ronald Jest, appeals with permission from the judgment of His Honour Judge Grenfell given on 23 November 2000, whereby he dismissed the appellant's claim against the respondent, Thistle Hotels Plc.
2. From about 1990 the appellant was employed by the respondent as a wood-working machinist at their premises in Leeds. The appellant alleged that between 11.00 am and 11.30 am on 27 August 1997 he sustained an injury at work for which the respondent, his employers, were liable.
3. In his particulars of claim, dated 24 September 1999, it was pleaded that on that morning the appellant was cutting numerous sections of MDF to appropriate widths. After cutting each section, he stacked it against a wall adjacent to his machine. He was then required to re-cut each section to precise dimensions. It was pleaded that the appellant was pulling one particular section from the back of the pile, where there were some 40 to 45 other pieces resting against the wall. In the process of so doing, another piece then fell, striking his left knee which thereby sustained a fraction of the patella. It is alleged that the accident was caused by the negligence and/or breach of statutory duty of the respondent.
4. The defence, served on 3 November 1999, denied that any accident such as alleged by the appellant had occurred. The subparagraphs in the defence set out the reasons why the respondent contended that no such accident had ever happened. Breach of duty was denied, and contributory negligence was alleged.
5. The hearing before the learned judge took place on 22 and 23 November. The judge heard the evidence of the appellant, Mr Stuart Matthews, a consultant skeletal trauma surgeon of St James University Hospital in Leeds; Mr Haigh, another wood-working machinist employed by the respondent at the relevant time; and finally the appellant's wife. The evidence called on behalf of the respondent came from Mr James Hamilton, a consultant orthopaedic surgeon; Mr Peter Welborn, then employed as Health and Safety Officer by the respondents; Mr Ronald Rainford, then employed by the respondents as a workshop manager; and finally Mr Michael Kay, then employed by the respondents as a foreman.
6. The learned judge found that if the accident happened in the way described by the appellant, then the respondents were in breach of duty and, in particular, of the Manual Handling Operations Regulations 1992. But the learned judge found that the appellant had failed to prove on the balance of probabilities that he had suffered an accident at work in the way that he alleged. Accordingly, the claim was dismissed. The appellant challenges that finding.
7. The learned judge structured his judgment in the following way. He first set out the appellant's account of the accident. The accident happened at between 11.00 to 11.30 am. The appellant was trying to pull out a particular piece of MDF board from a stack of 45 to 50 pieces, all stacked against the wall. He twisted the piece he wanted to get out and tilted it to get it out. He understood a piece behind it in the stack fell and hit him. He was sideways on. The piece that hit him was 5-6 ft long, 25 ins or 30 ins wide, and 18-25 mm thick. He did not see the actual piece which allegedly injured him. He had no recollection where it fell, nor what happened to it. He did not report the accident because, to quote his very words, "I didn't think owt of it. I thought that were it." He went on working until 4.30 pm in the afternoon and then went home. This was no other incident occurred which could have caused his knee injury.
8. The learned judge then continued in this way:

"Having left work, the [appellant] told me that his mate, who has not in fact given evidence in this case, came to collect him at about a quarter to five. So that is over a quarter of an hour after he left work. This was to play football, but the claimant said that he was too sore and went, therefore, just to watch the game. He spent two hours on the touchline watching the game, he told me.

Rather surprisingly, in his witness statement there was no mention of going out on this particular evening. I say that is surprising because the way in which it is described there in his witness statement was simply that he continued with his work until his shift ended at 4.30 pm and then went home. It continued, 'During that night, I was unable to sleep. My left knee became swollen and sore. I tried to sleep on the sofa downstairs and then on the floor, but I found it impossible. My knee became twice its normal size.' There was, therefore, very little about what occurred that evening."

9. The learned judge then summarised the evidence of Mrs Jest. He remarked that her statement made no mention of the appellant, her husband, going out in the evening to play football. He found that the statement gave a clear impression that the appellant had been at home all that evening. Mrs Jest said that at some point in the evening the pain became very severe and next day he went to hospital.
10. The appellant had suffered what is called a crack fracture. He had a congenital defect in the form of a bipartite left patella; that is to say, the knee joint was in two parts, joined by cartilage. It was the smaller part of the kneecap that was fractured. Both Mr Matthew and Mr Hamilton gave evidence that it must have been a blow of some substance to cause that particular fracture. The learned judge then set out what he found to be a very important piece of evidence, given by Mr Hamilton and by Mr Matthews. I quote:

"Typically, [Mr Hamilton] says, this type of fracture would show up within hours. It could be within minutes, particularly a fractured patella. He found it very surprising that a person would have been able to continue to work for a number of hours and he put it as strongly as this, that it was almost beyond belief that it did not provoke severe pain almost immediately. There are other factors. He would expect any bending of the knee, for example getting into a car, as simple as that, would cause immediate pain. He thought that standing on the touchline would itself have been difficult and, of course, it goes without saying that to have managed work for a whole day he regarded as being very difficult to believe.

On the other hand, Mr Matthews, who was the orthopaedic surgeon called on behalf of the plaintiff, explained that the bone that had fractured could be structurally weak and this could explain how the injury had occurred. He said that it would cause pain initially and then it would become sore, but in certain circumstances a person with such an injury could still walk and bear weight, because it was a marginal fracture. He thought that it would have got worse, or could have got worse, because some of the fracture line could extend into the other part of the kneecap, the main part of the kneecap and, therefore, it could stretch the entire knee joint."

11. A little further on in his judgment the learned judge said:

"Not surprisingly Mr, Matthews was asked by Mr Charles, counsel for the defendants, as to whether this kind of fracture, as we know it was, would have caused immediate severe pain. He was certainly for accepting that it would cause pain, but not severe necessarily at the initial stages, but it was clear to me that in reality what Mr Matthews was saying was that in any fracture he would have to agree that there would be serious pain immediately. It remains one of the curious features of this particular case.

That then is the way in which the medical evidence comes into play."

12. On 28 August Mrs Jest telephoned and spoke to Mr Rainford, the workshop manager. She said that her husband had suffered an accident at work and had gone to hospital. Nothing was then put into the respondents' accident book. The hospital record, which the learned judge had in front of him and which has been in front of us, was described by the learned judge as "sketchy in the extreme". It records that the nurse or the doctor had been told that the appellant had "Banged [left] knee yesterday".
13. The matter then moves on to 1 September 1997. On that day Mrs Jest went to the office and spoke with Mr Welborn. He made a note of the conversation, the relevant part of which reads as follows:

"It appears he has had an accident at work - this has not been entered into the accident book - and again not been notified to the HSE - Mrs Jest didn't know what caused the accident - so I rang Ronnie [the appellant] at home (with Mrs Jest's approval) (she gave me the No). He said - Wednesday 27-08-97 approx 11-11.30 hrs - moving 18 mm MDF onto bench from the stockpile, 2nd sheet below followed catching left knee. This hurt at the time, sat down rubbed the knee, and continued working until 1700 hrs ish.

That night his knee woke him up with the swelling & pain. He went to [hospital] next day Thursday - wife rang in - sick Friday again rang into the workshop - no mention of this accident to anyone."

14. There was an important issue about what was said between the appellant and Mr Welborn on 1 September. The learned judge said:

"The issue is very simply this. Has Mr Welborne got the wrong end of the stick as he spoke with the claimant on the telephone? It is by no means unknown for a person who is listening to an account over the telephone to form a different impression from that which the person giving the account wishes to convey, but Mr Welborne told me in evidence that he was left in no doubt at all as to what the claimant was telling him. Of course, the stockpile was not mentioned to be lying on the ground, but he regarded a description of the stockpile as being something which would have been a pile of MDF board that would have been left there at the very outset. He therefore understood that the claimant was telling him he had lifted up a horizontally placed board, pulled it away and had accidentally pulled the sheet below, which had come out and struck him on the left knee. This was something which he, Mr Welborne, had done from time to time. He said it was very easily done and it would hurt at the time, but not really cause any difficulty. It was almost an expected hazard of the job."

15. The learned judge then turned his attention to what it was that the respondents submitted. The respondents' case was that this injury did not occur at the workplace. They submitted that there may have been an incident of the kind described by the appellant and Mr Welborn, but that it was of no great consequence and the injury must have occurred at some time outside the appellant's working hours. It was in that way that the question of what the appellant had been doing on that particular evening came into the case.
16. Mr Rainford gave evidence on behalf of the respondents that he had overheard the appellant, in conversation with others, saying words to the effect that he (the appellant) would not be playing football that evening unless it stopped raining. Mr Rainford was not able to say whether that conversation was before or after 11.30 on the morning of 27 August. Mr Rainford further gave evidence that at about two o'clock on the afternoon of 27 August he heard the appellant saying something along the lines that he would be playing football that evening. The importance, of course, of that latter conversation was that, if it occurred, it occurred at 2.00 pm, after the time that the appellant says that he suffered his accident. Mr Rainford admitted that the 2.00 pm conversation (if I may call it that) was not in any way recorded in his statement.
17. Mr Kay then gave evidence on behalf of the respondents that the appellant, when he left at half past four that afternoon, was not limping. The reason why the respondents called Mr Kay was because of the evidence given by Mr Haigh on behalf of the appellant. Mr Haigh told the learned judge that he saw the appellant as he (the appellant) was finishing his shift, clocking out at about 4.30 pm. He said to the learned judge that he (the appellant) looked as though he was limping, so much so that he had asked the appellant what he had done and apparently the appellant said that he had banged his knee.
18. So far as that evidence is concerned, the learned judge said this:

"It is unclear as to whether there was something of a limp at that time, or whether, as the [appellant] himself said, he did not think that there was. Suffice it to say, however, that what Mr Haigh said the [appellant] reported to him was indeed consistent with what he was to say when he attended the hospital the following day, which was that he had banged his knee. It looks then as if there was something to draw Mr Haigh's attention to him and it may have been a very slight limp, but sufficient to ask him if there was anything the matter, which elicited the response that he had banged his knee. Indeed, when he was cross-examined about it, he said it was a limp such that he noticed, but it was not much."

19. The learned judge having set out the evidence, then went on to perform what in my judgment was a careful and meticulous analysis of the evidence. He said that in his view there were a number of factors which created a puzzle in this particular case. There appear to me to have been eleven such factors which impressed the learned judge.

(1)If the accident did happen at 11 o'clock in the morning, there was no real severity in the pain until at least after he had left his work, and most probably it was very much later in the evening.

(2)The manner in which the accident was said to have happened. There had been, during the interlocutory stages of the case, various requests for information arising out of the appellant's statements and that of Mrs Jest. Suffice it to say that the learned judge was puzzled about the discrepancies between the way that the appellant had described how the accident happened in those documents and the way he described it to the learned judge in his evidence.

(3)The appellant had performed a demonstration in court as to how the accident had actually happened. The learned judge remarked that it was difficult to see how the piece of wood, said to be at the back of the pile, could have fallen and struck the appellant's left knee, bearing in mind that the appellant was, as the learned judge put it, "coming at this pile from the right".

(4)The learned judge drew attention to whether it was possible for the accident to have happened in the way that the appellant described, and yet not leave any form of graze upon the appellant's left kneecap.

(5)The learned judge was struck by the appellant's lack of any idea of really how the accident had happened. The appellant was unable to say how the wood fell, how it came to fall or where it ended up.

(6)(The learned judge described this as "a particularly large puzzle".) How it was that, given the evidence of Mr Matthews and Mr Hamilton, to which I have referred, the appellant could possibly have worked the rest of the shift. The learned judge said:

"It is impossible, it seems to me, that the [appellant] could have worked the whole of that shift without bending his knee. Indeed, if he had found any difficulty in bending his knee, he would have realized that what had occurred would have been so much more serious, but, of course, as he said and maintained throughout, he really made very little of this at the time."

(7)The learned judge drew attention to the fact that neither in the appellant's nor his wife's statements was there any mention of the appellant going to watch football on the evening of 27 August.

(8)He said that the account that had been given, particularly to the doctors at the hospital, did not square with the account given by the appellant. It should be remarked here that in fact the learned judge fell into error in one respect, in that he said that the account given to the doctor recorded that he had banged his knee "at work". That was not correct, as can be seen from the terms of the clinical notes.

(9)The learned judge came to the conversation between the appellant and Mr Welborn on 1 September. He made full allowance for the submissions by Mr Axon (the appellant's then counsel) but he went on in this way:

" . . . Mr Welborne was an impressive witness and one not to be swayed and he said that his understanding of what the [appellant] told him on the telephone was quite clear, and he had a very clear understanding of what he was being told. Making full allowances for the fact that there could be a misunderstanding, it seems to me, having seen that account, that in reality it was a very different account to the account which has subsequently formed the substance of this action."

The fact was that the judge preferred the evidence of Mr Welborn on that issue to that of the appellant.

(10)He accepted the evidence of Mr Rainford, particularly in respect of the conversation at two o'clock on the afternoon of 27 August. That, the learned judge found, was wholly inconsistent with the fact of the appellant having sustained a fracture of the knee that particular morning.

(11)Finally, the learned judge found that by 4.30 pm, upon the claimant's own evidence, there was really nothing that appeared to be wrong with him. He posed the question "what happened thereafter", that is after 4.30 pm, and he said that there was no immediate answer to that question.

20. The learned judge then concluded in this way:

"For the reasons which I have just outlined, I have reached the regrettable position that I find the claimant is unable to prove on the balance of probabilities that the accident happened other than on his account as interpreted properly by Mr Welborne on the 1st September. This would not, in my judgment, account for a fracture of the patella unless the piece of MDF at the time had been pulled out with great force and, indeed, if it had happened really towards the very end of his shift rather than the very early part of it, because even then the timing appears to be wholly against the fracture occurring at work.

Therefore, it seems to me, unfortunately, that the claimant in this case cannot prove that his fracture occurred as a result of any injury sustained at work, bearing in mind that the burden is on him to prove that and he must prove it on the balance of probabilities. The probabilities which I have just outlined are, sadly, all against this occurring at work and so, as I say, with regret, the claim must fail."

21. Miss O'Hare appears as counsel for the appellant today. In my judgment, she has said with commendable conciseness and lucidity everything possible on behalf of her client. Her submissions can be summarised as follows. First she says that the learned judge has not expressly (she would say, no doubt, nor implicitly) found that the claimant/appellant was not telling the truth. The way she put it was that there was no attack on the credibility of the appellant. It is correct to say that the learned judge did not specifically and expressly say words to the effect that he rejected the appellant's evidence. Miss O'Hare says that if in fact the learned judge was saying that the appellant had been dishonest, then he should have said so.
22. In my judgment it is implicit, particularly in the way that the learned judge meticulously and carefully analysed the evidence, that he did indeed reject the account given by the claimant as to the way his left patella was injured. In my judgment, where a judge finds on the balance of probabilities that the claimant had failed to prove his case, it is not necessary in such a case as this for the learned judge to go on and specifically say that he either rejects the claimant's evidence, or that he finds he has been dishonest in his evidence.
23. The second major submission that Miss O'Hare makes before us is that the learned judge had found that there was important evidence given in support of the appellant, namely the evidence of Mr Haigh. Miss O'Hare submitted that in effect the learned judge had accepted the evidence of Mr Haigh that indeed the claimant had left his work with a limp and that that was extremely important evidence to support the appellant's case. I cannot accept that submission. The learned judge, in the passage to which I have referred, very carefully analysed the evidence of Mr Haigh and indeed went so far as to say that it was unclear as to whether there was something of a limp. Indeed, if there was any such limp it was something that was very, very slight indeed. Therefore, in my judgment Mr Haigh's evidence does not go to support the evidence of the appellant in the way that Miss O'Hare submits.
24. The third matter to which Miss O'Hare drew our attention was the "sketchy" (as she described it) note made by Mr Welborn. Her submission really is to the effect that the learned judge should not have accepted the evidence of Mr Welborn. The learned judge in my judgment was faced with a difference of recollection between that of the appellant and that of Mr Welborn. He found Mr Welborn to have been an impressive witness and accepted his evidence. In my judgment, the learned judge cannot be criticised as to that.
25. The fourth matter that Miss O'Hare submitted was that there really was no direct evidence that the appellant had suffered any injury at the football match and, if that was so, then he must have suffered the injury in the way which he described. True it was that there was no witness called by either party to the effect that there had been no injury to the appellant at the football match. That was, of course, a matter for the appellant and his advisers. The fact that it was being said that the injury occurred outside his working hours was well-known to the appellant. He was able, if he had so chosen, to have called evidence from one or perhaps two of the people who were present at the football match that evening, but that was not done.
26. Fifth, Miss O'Hare drew attention to the joint report of Mr Matthew and Mr Hamilton in April 2000, and particularly to paragraph 2. That is to the effect that it was perhaps not surprising, given his bipartite patella, that the appellant had not suffered any great pain until much later on on 27 August. However, it is apparent that the learned judge had in front of him a supplemental report from Mr Hamilton of 14 November 2000, where he went into considerable detail about that matter and expressed his surprise that the appellant, if he really did suffer the injury he said he suffered, could have continued to work, apparently in a painless way, for the rest of the day. As I have said, when Mr Matthew was cross-examined and when Mr Hamilton gave evidence, the learned judge (correctly, in my judgment) recorded that the two doctors were really of the same view: that it was indeed surprising that the appellant could, if he had suffered this accident, have continued to work in the way that he did.
27. For my part, having listened carefully to the submissions of Miss O'Hare, I can see nothing in them that would give me any cause to doubt that the learned judge had not only recorded the evidence given before him correctly, but had come to the right conclusion. In my judgment he meticulously analysed the evidence, he came to the conclusion he did and, for my part, he was right so to do. I would dismiss the appeal
28. LORD JUSTICE TUCKEY: I agree.
29. LORD JUSTICE SIMON BROWN: When Sir Murray Stuart-Smith, as the single Lord Justice, granted permission to appeal in this case, he observed that he found it "a little strange that the Judge has rejected the [claimant]'s sworn evidence without criticising his credibility or demeanour." I can understand that comment as an initial reaction to this appeal, skilfully presented as it was in the applicant's skeleton argument and, indeed, as it has been today by Miss O'Hare, who recently inherited this difficult brief. On a more careful reading of the judgment, however, and a more critical analysis of the probabilities of the case, not least in the light of the agreed medical evidence, it has seemed to me perfectly clear that in reality the judge was indeed criticising the appellant's credibility and was indeed rejecting his and his wife's central contention that he fractured his kneecap at work rather than after work on the day in question.
30. The judge could, of course, have twisted the knife and found in terms that the relevant injury occurred on the football field and that Mr and Mrs Jest had perjured themselves after conspiring together to fix responsibility for this unfortunate injury on the appellant's employers. There would in my judgment have been an ample factual basis for such findings. But strictly it was unnecessary to make them and, to my mind, the judge can hardly be criticised for declining to spell out his conclusions in those stark terms. It was kinder to say, as in effect he did, that, even assuming that Mr Haigh was a truthful and reliable witness and that the appellant had bumped his knee at work that morning, that was not established on the balance of probabilities to have been the material injury. As Mr Justice Bennett's judgment and, in particular, his identification of the eleven points which the judge below made against this appellant demonstrates, the balance of the evidence here plainly favoured the rejection of this claim. I too would dismiss the appeal.
ORDER: Appeal dismissed with costs awarded under section 11 of the Legal Aid Act 1998, the appellant's contribution assessed at nil. (Order not part of approved judgment)