England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF
HIS HON. JUDGE POULTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th October 2002

Lord Justice Ward :

1. The appellant, now Mrs Whitling, claimed damages from her former employers, Marks & Spencer plc, for personal injury she suffered as long ago as 11^th January 1993. Liability was admitted at a late stage, subject to a 10% reduction for the claimant’s contributory negligence. His Hon. Judge Poulton heard the trial of the amount of her damages over three days in June 2001. Mrs Whitling was claiming over £400,000. When judgment was given on 30^th August 2001, she was only awarded £2,850. She now appeals against that order with the permission of Hale L.J. For reasons which I shall explain, I would allow the appeal and remit the matter back to the High Court to be retried before another judge. In order that the new judge may consider the matter afresh and on the evidence presented to him or her, I deliberately refrain from more comment on the facts than is necessary to explain this judgment.
2. The claimant was a single woman aged twenty-six at the date of the accident. She was then a deputy supervisor working in the defendant’s store and on the day in question, Monday 11^th January 1993, she was given the task of moving very large counters from one part of the store to another. They are extremely heavy. Some of them do not have wheels. It is very difficult to lift them. Most have to be pushed into place. That work engaged her on that day from about 7 a.m. to 3 p.m. As the day progressed she noticed she had pain in her lower back but made no fuss about it. Over the next few days her back was extremely uncomfortable. By Friday the pain had become intense. On Saturday she was suffering such pain in the lumbar region of her back that she had great difficulty getting out of the motor car in which she was driven home from shopping. She rested that weekend. On the following Monday, a week after the accident, she tried to get out of bed but could not move. The general practitioner was called. He found that her straight leg raising was limited to 55 degrees. He prescribed some analgesics and recommended her resting for two weeks. She made no significant improvement and was recommended to continue bed rest.
3. On 19^th February there was an incident which, as the judge observed, “has assumed considerable significance in this case”. She had gone downstairs to have lunch and was returning to her bed assisted by her mother when, at the top of the stairs, she “fell” as is recorded in the medical note for that day or more likely, as the judge found, stumbled. The medical note recorded, “Worse pain. Tender. Straight leg raising 38 degrees right and left. Plan, rest again”. That incident was, indeed, a significant one because that trip or stumble, say the defendants, was the real cause or very substantially the real cause of the chronic back pain and discomfort this young woman has suffered ever since. She does not accept that: her case is that the stumble did cause her pain over the following few days but it soon subsided and ceased to have any causative effect. The cause was the 11^th January pushing of cabinets. She has, moreover, another answer to the defendant’s case. If, which she denied, this later event did occasion significant harm, the defendants remain liable to compensate her for all her pain and suffering because the stumble was a consequence of her having been disabled by the original back injury.
4. There seems little doubt that this young woman did suffer. I say “little doubt” rather than “no doubt”. The defendants had failed to establish by video surveillance that she was not suffering as she said she was. Mr Good, their own expert, readily accepted that she was genuine. Doctor Goodwill, another of the defendant’s experts, was less ready to make that concession and said that he did not know whether she was genuine or not. The general tenor of the body of medical opinion in the many reports before the court was, however, that she was not dissembling. Although the judge adverted to her being regarded as genuine, he also found, and Mr Roberts submits that these findings were against the weight of the evidence, that:-

“… Mr Spigelman [the claimant’s medical expert] accepted in evidence that the contention that whereas she could lift one pint of milk but she could not lift two, was a gross exaggeration. I do consider that in her accounts through the years really there has been a considerable element of exaggeration. That she is not as disabled as she contends, although I also accept that at times she has suffered genuine pain and discomfort and it has varied considerably.”

5. We have seen the transcript and read that Mr Spigelman did no more than comment that an inability to lift two pints of milk was very unusual because even with a very sore back one should be able to do that. That was at least some evidence to support and explain why the judge found some exaggeration, if not gross exaggeration. Mr Roberts also complains that it was never suggested in cross-examination of the claimant that she was exaggerating her symptoms and in the light of the almost universal acceptance by the medical experts that she was genuine, this was an unfair criticism to make of her. He may be right, but a judge is entitled to form his own view of the witnesses before him. While I see the force in Mr Roberts’ submissions, this court always shows a reluctance to throw findings of fact overboard unless it is plain and obvious that they were made in error.
6. She certainly has suffered over the years despite a range of treatment from physiotherapy, acupuncture, epidural injections and two operations, the second of which on 22^nd March 1999 included an endoscopic intradiscal disectomy of the L4/5 lumbar discs. Quite when and how that disc injury was sustained was a hotly contested issue at the trial. The dispute ranged particularly over an inconclusive MRI scan in March 1994 compared with the scan three years later in August 1997. I deliberately refrain from too much comment.
7. By the date of the trial Mrs Whitling was complaining of suffering pain on a daily basis in her lower back radiating down her legs which caused difficulty in walking any distance. She was unable to sit for long and frequently had to lie down to alleviate the suffering. She was unable to work, her employment with the defendant having been terminated in 1995 on the grounds of her ill-health.
8. The claimant’s case at trial, supported by the evidence of Mr Spigelman, was that the claimant ruptured a disc in the 4/5 lumbar vertebrae position which took a number of years to diagnose and two operations to repair. For the defendants, Mr Good stated that he would have expected her to have fully recovered from the strain of pushing these heavy counters within about six weeks of the incident and for there to be no further disability attributable to that incident. It was his opinion that her subsequent symptoms resulted from the fall in February. Doctor Goodwill seemed prepared to agree that a straining injury of the sort she sustained would have recovered within four to six weeks without causing any later problems, but his preferred view was that 80% of her problems stemmed from the stumble on the stairs and only 20% from the accident. Notwithstanding those two views, which may be hard to reconcile with each other, he also told the judge in a written report:-

“In my experience judges seem always to presume that the alleged incident caused any subsequent changes and do not seem to understand that these are quite common, spontaneous events with no history of injury at all.”

The judgment under appeal.

9. This was a reserved judgment. He dealt first with the fall or stumble on the stairs and said this, with emphases added by me:-

“That incident on the stairs is one which has assumed considerable significance in this case. The doctors instructed by the defendant noted it as one would expect. They both, particularly Mr Good, are of the view that it is a far more likely cause of subsequent problems than is the pushing of the counters.

I will deal with some of the evidence about that now. It is the claimant’s case, put before the court with very considerable emphasis by Mr Roberts, her counsel, that this incident noted in the medical notes is of no significance whatsoever. The claimant said, “Well, the pain was worse for a bit, but it very soon went back to what it had been before and really it should be ignored”.

Throughout the period, when she was shopping in Canterbury, up until this time, the claimant described how she had been in very, very considerable pain. She had gone downstairs on this occasion in February and had been down for quite a short time but was in such pain that she needed to go back to bed and she went back upstairs. In the course of going upstairs she did not so much fall – which is what the notes say – as stumble. She says she was holding the banisters.

There was originally no other evidence in support of that account of the matter put before the court but, by permission of the court in the course of the hearing, her mother, who was present on that occasion, came to court to give evidence to the effect that the claimant indeed did not fall.

Mr Good also put forward the view that if she simply tripped and was held by the fact that she was holding onto the banister but did not actually hit the ground, that would involve a twisting motion and that too was likely to be significant in the context of the injuries which are said to have been suffered and to which I will come.

I was unable in fact to place very much reliance on the evidence of the mother who was asked 8½ years later to remember this incident. I do accept that it may well be that there was no actual fall in the sense that the claimant actually hit the ground. On the other hand, it does seem to me, on the basis of the medical evidence, that what did happen would have caused a degree of twisting even though, I quite accept, that the claimant may not have realised that. If you were holding on with one hand as you go up and you stumble and try and save yourself, that is a likely consequence. That is what Mr Good said. I accept his evidence on that.”

10. Upon analysis that passage contains findings that (1) there was no actual fall but (2) what did happen caused a degree of twisting, (3) this twisting motion would have been significant in the context of the injuries which are said to have been suffered and (4) he accepted the evidence of Mr Good on this point. What is not quite clear is whether that acceptance of Mr Good’s evidence included an acceptance of other evidence from him that the twisting was “a far more likely cause of the subsequent problems than was the pushing of the counters”. He does not seem to make, as one may have expected him to make, an express finding of causation in line with Mr Good’ opinion and the defendant’s primary case.
11. The judge then dealt with his approach to the substantial claim for pain and discomfort and for loss of past and future earnings. He directed himself in this way:-

“The question the court has to ask, and the one which has most concerned me … is what did cause the claimant’s problems? I will come somewhat later to the extent to which I accept that there are problems; but, to a considerable extent, there were indeed difficulties. Doctor Goodwill, and, I understand, Mr Good, as was understandably emphasised by counsel accepted that she was genuine. … It is of course, and this may be trite but I will emphasise it, for the claimant to prove that the pain, discomfort and injuries which she has suffered down the years were caused by this incident. It is not sufficient for her simply to say, “I had an injury on 11^th January 1993 while pushing the defendant’s counters and I have never been right since”. One has to be satisfied, the court has to be satisfied that the consequences of the pushing were indeed the injuries for which she claims.”

He then added the passage from the report of Doctor Goodwill on judges’ failures to appreciate that back problems might arise spontaneously with no history of injury at all.

12. The judge then referred to some of the medical evidence which I need not relate in detail. He characterised the March 1994 MRI scan as one which “came up with nothing of significance”. He noted an instance of pain in October 1994 after bending over the bath. He accepted Mr Good’s comment with reference to the August 1997 MRI scan that it showed degenerative changes associated with radial tears to lumbar 4/5 and lumbar 5 sacral 1. He referred to the first operation which left the claimant still unable to walk properly and still suffering some incontinence. There were notes from the second operation in 1999 that there was significant scarring of the nerve tissue around lumbar disc 4/5, the disc wall being found to be adherent to the nerve.
13. Having given that account of the medical evidence he continued, again with my emphases added:-

“As I have indicated, the question I have to answer is whether the rupture of the lumbar 4/5 which Mr Spigelman found, basing himself really on [the surgeon’s] report, as he made clear both in his own report and in evidence, whether that can be attributed to the incident on 11^th January. In order to be able to do that one would have to be able to explain, it seems to me, how it comes about that the MRI scan of March 1994 missed this rupture. There was some disagreement between the doctors about this. … ” [He summarised the difference of opinion]. “In my judgment it cannot be established that the pushing incident on 11^th January caused all the subsequent problems. There are two aspects to this. A good deal of the argument revolved around the question as to whether the fall on the stairs or the trip on the stairs or the stumble on the stairs, whatever one likes to call it, was the cause of the later problems. Mr Good and Doctor Goodwill were fairly clear, in fact they were very clear, that it was far more likely to be the cause of a disc problem than the pushing. I accept their evidence that the pushing incident, with the way one pushes and the strain on the spine is less likely to cause the kind of disc injury on which the claimant bases her claim than is a sudden fall or stumble.

There is another aspect to this in that Mr Roberts argues that even if I were satisfied that the stumble on the stairs was the more likely cause, he says that that was itself caused by the January incident. Accordingly, on the basis of authority which he cites, he says that there is therefore a complete chain of causation, the pushing caused the stumble or trip and the trip caused the damage and that is sufficient. If that were so I would agree with him but I am not satisfied that the trip or stumble was caused by the original pushing incident.

That is part of it, is it the trip on the stairs or is it the incident in the store? If one were forced into choosing between them I would say that I consider the stair incident the more likely, but, in my judgment, one is not forced into choosing between them. There may well have been, indeed there will have been, life events – I think that is Doctor Goodwill’s expression – in the many years that follow. It was years before this rupture, lumbar 4/5, was diagnosed. It may have been the bath incident. One cannot say. It is quite wrong to approach this on the lines that if one cannot identify some other cause, therefore it must have been the pushing on 11^th January. That is the wrong way round. One must be satisfied that it was the pushing on 11^th January and in the light of all the medical evidence, which I have only summarised because it is voluminous, but in the light of all the medical evidence I am simply not satisfied that this incident on 11^th January, with the pushing of these heavy counters, caused all the subsequent problems.”

14. Analysing these passages it seems that the judge’s reasoning was (1) he did not have to decide whether the incident in the store or the stair incident was the more likely cause of the subsequent injury, (2) the claimant had failed to establish to his satisfaction that the pushing incident on 11^th January caused all the subsequent problems. He came to those conclusions notwithstanding his accepting the defendant’s “very clear” expert evidence that the stumble on the stairs was “far more likely to be the cause of a disc problem than the pushing”. This process of reasoning is attacked by Mr Roberts.
15. To do justice to his argument I must recite other passages in the judgment. The judge said:-

“Mr Spigelman, Mr Good and Doctor Goodwill agree that ordinarily such injuries resolve within about three months of such an incident in the vast majority of patients. I consider that joint opinion to be significant because, of course, it establishes the improbability of this incident causing these problems. It does not mean it is impossible. Of course, if there were clear evidence that it had then one would accept it but one starts with the improbability.”

16. Mr Roberts submits that the last passage betrays the error in the judge’s thinking. He submits that the fact that most pushing injuries resolve within a short time does not, as a matter of logic, lead to a conclusion that it is improbable that the claimant’s injuries were of greater severity. I see the force of the submissions. Mr Aldridge, for the defendants, counters it by suggesting that the judge was entitled to take into account the fact that soft tissue injuries ordinarily resolve quite quickly and was really saying no more than that he was taking that fact among others into account. If this point were to stand alone, I would not be inclined to allow the appeal. Despite the fact that this was a reserved judgment delivered a little over two months after the conclusion of the evidence, it might still be thought that this criticism is the kind of “narrow textual analysis” which this court should not undertake. It does, however, cause us to look more closely at the other findings.
17. The judge was obviously correct in setting out the burden of proof and the judge is always entitled to conclude a case on the basis that the burden has not been met. That can happen, but it does not often happen. Here it is surprising that it should have happened given the judge’s apparent preference for the clear evidence of the defendant’s expert that the incident on the stairs was the more likely cause of the subsequent injury. For my part, I am not at all clear why the apparent acceptance of that evidence did not lead inevitably to the conclusion that on the balance of probabilities the stumble was the effective cause of the subsequent injury.
18. Seeing that such a conclusion was the end of his primary case on causation, Mr Roberts sought to attack it as being against the weight of the evidence. He took us through that evidence with a view to persuading us that upon a proper view of all the medical evidence these injuries stemmed from 11^th January. Mr Aldridge was equally adept in pointing to the strengths in his case. There was certainly enough material before the judge to justify his findings and to prevent our interfering. The fact that another judge might reach another conclusion is neither here nor there. That being the case, and in the light of the conclusion I have reached on the matters that follow, I do not consider it necessary to express a view one way or the other about the merits of those respective arguments.
19. My deep anxiety in this case has centred upon that part of the judgment in which the judge stated he was not satisfied that the trip or stumble was caused by the original pushing incident. He appears to have accepted the law as set out in the authority cited to him by Mr Roberts. That was Wieland v Cyril Lord Carpets Ltd. [1969] 3 All E.R. 1006. The plaintiff there suffered an injury caused by the admitted negligence of the defendant. After attending the hospital she felt shaken and the movement of her head was constricted by a collar which had been fitted to her neck. In consequence she was unable to use her bi-focal spectacles with her usual skill and she fell while descending stairs, sustaining further injury. Eveleigh J. held:-

“In the present case I am concerned with the extent of harm suffered by the plaintiff as a result of actionable injury. In my view the injury and damage suffered because of the second fall are attributable to the original negligence of the defendant so as to attract compensation. If necessary I think the plaintiff’s case can also be put against the defendant in another way. If it can be said that it is foreseeable that one injury may affect a person’s ability to cope with the vicissitudes of life and thereby be a cause of another injury and if foreseeability is required, that is to say, if foreseeability is the right word in this context, foreseeability of the general nature will, in my view, suffice.”

I agree, therefore, that the judge had to ask himself in this case whether there was a complete chain of causation with the pushing causing the injuries which caused the stumble which caused the further damage. The whole of the claimant’s case had come to rest on that question.

20. There was other evidence to which he referred later in his judgment which had some bearing upon it. He noted that:-

“Mr Good and Doctor Goodwill feel that it would be unusual and contrary to accepted practice to advise such bed rest [i.e. her having to take to her bed from about 19^th January until after the stumble on the stairs]”.

21. Mr Roberts complains that the judge did not subject that evidence to critical analysis. The question, he says, is not whether it is usual or unusual: the question is whether it happened or did not happen and he points to the contemporaneous medical notes confirming bed rest. The much more powerful point made by Mr Roberts is that even if for good reason the judge could not and did not rely upon her mother’s evidence, it is to be noted that he did not anywhere make an express finding that he disbelieved the claimant when she gave her account of what had happened. He had already accepted that something had happened. It does not matter whether it was a stumble rather than a trip. It does not matter whether she actually fell to the ground or saved herself from falling. Whatever had happened that day, it involved a twisting motion which was significant in the context of the injuries which developed later. Yet, as I have indicated the Judge seems to have shrunk away from deciding that this stumble was the effective cause of the subsequent injuries.
22. In my judgment the judge was in error in saying that he was not forced into choosing between the causative impact of the pushing the counters as against the stumble on the stairs. It was an issue in the case and he was required to decide it. It was a vital issue on which the medical experts disagreed. There was ample evidence before him to enable him to resolve it. Assuming that the correct view was, as Mr Good believed, that the subsequent injuries were entirely attributable to the twisting on the stairs, then the judge had to decide the second question, namely, whether the fall on the stairs itself was due to the pain and disabilities suffered as a result of pushing the heavy counters. Mr Good had accepted under cross-examination that if the stumble on the stairs was not a discrete and separate accident, all of the appellant’s symptoms were caused by the accident on 11^th January. That appears from these passages:-

“Q. Your case is that this stumble on the stairs is completely separate and distinct from the accident. Let us assume […] that that was not accepted, that it was considered to be referable to the index accident. It would follow, would it not, that all of these lady’s symptoms to the present had been caused by the accident on 11^th January?

A. Yes.

Q. Thank you. So the critical question is whether there is this independent, separate and distinct accident?

A. Yes.”

23. This had become the critical question the answer to which would effectively determine the claim. The crucial answer is contained in a line and a half of the judgment – “I am not satisfied that the trip or stumble was caused by the original pushing incident.” No reasons were given for this conclusion.
24. I am very aware that since Flannery v Halifax Estate Agencies Ltd. [2000] 1 WLR 377 there has been a plethora of appeals complaining of the insufficiency of the reasons for the decision under appeal. The position was reviewed in English v Emery Reimbold & Strick Ltd. [2002] 3 All ER 385. There Lord Phillips of Worth Matravers M.R., giving the judgment of the court, laid down these principles:-

“16. We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.

…

19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he has resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision.”

25. In this case the claimant gave an account of how she was confined to bed in the week after the accident. She had remained in bed on medical advice. She was advised to go down occasionally and did so on the day in question. She said:-

“I would have to shuffle. My mother had to help me down the stairs. After lunch, which was ten minutes, I went upstairs. I was in immense amount of pain in my back and I was finding it very difficult to walk. When I got to the top of the stairs, I caught my foot on the top stair. I just stumbled forward. I did not fall on the floor. This caused an increase in pain.”

26. In his report Mr Spigelman had said this:-

“She tells me that it was at a time when she was having full-time bed rest; except for three times a day [when] she would go down some stairs assisted by her mother to eat. The rest of the time she was on bed rest. She tells me that she did not fall. She stumbled because her foot caught at the top of the stairs and this did cause a temporary increase in pain. Doctor Goodwill seems to consider this incident is responsible for 80% of her pain. I find this very difficult to accept in view of the fact that the patient was on permanent bed rest for severe back and leg pain at the time of her stumble. I would have thought the latter is more likely to be responsible for her stumble/fall.”

27. In his evidence he explained:-

“Just pain will distract you enough. You may miss a step or you may hit a step. You may also just be feeling weak.”

Under cross-examination he said:-

“Fit young women do not stumble on stairs and rupture discs. There was something there. I do not believe she ruptured her disc then.”

28. Mr Good said in his evidence:-

“I think it would be unlikely that she tripped. We have discounted things like a footdrop or a weakness in the leg. She could certainly raise her leg, her foot and leg, sufficiently to mount the step. She had done this before. She was also holding on to a banister; if that is so, so it is difficult to see how she would have tripped.”

29. This evidence seems to go only to the question whether she tripped or stumbled. Even if she stumbled, the stumble or whatever happened has to be explained away as an incident in which her pain and difficulty in walking played no part.
30. When Doctor Goodwill was asked whether any back pain the claimant may have been suffering immediately before the trip could have caused her to trip, he answered that he did not think it could:-

“That is not my experience. I have seen a lot of people with back pain, but it does not actually cause them to trip like that and I do not think it is a factor in this case, no.”

Under cross-examination there was this passage:-

“Q. With those facts before you, it is likely, is it not, that either, as Mr Spigelman says, the pain has distracted her or that there is footdrop or that there is weakness? That is the likelihood, is it not?

A. No, with respect. There is no suggestion of any footdrop or weakness here at all. Her pain was improving. Between the 18^th and the 28^th, we had the G.P. note which says “Reduced pain”, and I can only say again, I do not think this is a factor in tripping people to sometimes trip on stairs. The history here is not what I get from people with back pain saying, “I have difficulty like that”. That is not what I would expect.”

31. Given that the claimant gave an account of her being in pain which impaired her ability to walk, and given the evidence of Mr Spigelman, it behoved the judge to explain to her, and to this court, why he did not accept that evidence and why he preferred, if he did, the evidence of the defendant’s experts on this question and how, even if persuaded by that evidence that there was no trip, her difficulties in going upstairs were not related to the pushing incident. On one reading of his judgment he had not been so totally persuaded by the defendants’ evidence as to find the twisting to be the cause of the subsequent injuries. He had to bear in mind what seem to me to be inconsistencies in Doctor Goodwill’s evidence in that he was prepared to agree with Mr Good her pain would have resolved in three weeks, yet he also asserted that the original pushing of the counters was the cause of 20% of her continuing pain and then added almost as a “throw-away line”, but apparently accepted by the judge, that sometimes back pain is purely spontaneous. His allocation of 80% to the trip and 20% to the original accident came under some attack and, in assessing his reliability as an expert, the judge would have had to have borne in mind the value of his explanation which was:-

“I was trying to assist the court, as an independent witness, to say did one or other contribute, to assist the court to give some idea of what I thought would be reasonable, though I was still surprised that the pain was going on.”

32. Mr Aldridge had virtually to abandon reliance on that evidence in his closing submissions. Some judges would have found Doctor Goodwill to be a not wholly convincing witness.
33. The judge awarded the claimant “only very limited damages, really based upon three months pain and discomfort”, which he assessed at £2,500, together with an element for care provided to her by her mother valued at £350. She was claiming a hundredfold more than that. She was entitled to know why the judge did not accept that her trip or her stumble was not caused by her inability to walk properly. She cannot know from this judgment why the judge came to that conclusion. Neither can I. It was the matter which troubled Hale L.J. When she gave permission for appeal she stated her reasons to be:-

“Mr Good accepted that if the stumble on the stairs was not to be treated as a separate incident from the events at work then everything was attributable to those events. The judge expresses the view that the stumble on the stairs was not related to the earlier events but gives no reasons for this.”

34. Conclusion: In my view, the fatal difficulty with this judgment is that we simply do not know how the judge arrived at a vital conclusion. We do not know why the judge was not satisfied that the fall or stumble was not caused by the original pushing incident. I am, therefore, clear that this is a case where the court has with reluctance to allow the appeal and send the matter back to the High Court for rehearing. I say with reluctance because the events will be ten years or so old by the time this matter can be reheard. It must be heard by another judge who, I hardly need emphasise, will judge the matter completely afresh on the evidence before the court untrammelled by any views expressed by Judge Poulton or by me. I would, however, urge the parties to consider whether or not they are now in a position, if necessary with some help from this court’s A.D.R. services, to compromise this claim.

Lord Justice Mance : I agree.

Sir Martin Nourse: I also agree.