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 MANSFIELD COUNTY COURT
(HHJ WAINE)

		Royal Courts of Justice Strand London, WC2 Thursday, 28th November 2002

1. MR JUSTICE JONATHAN PARKER: This is an appeal by Firth Rixson plc, the defendant in a personal injuries action, from an order made by HHJ Waine, sitting at Mansfield County Court, on 15th March 2002. By that order the judge entered judgment for Mr Andrew McMylor, the claimant in the action, in the sum of £38,063.90, inclusive of interest. The judge refused permission to appeal but permission was granted by Lady Justice Hale on 7th June 2002.
2. In the action the claimant claims general damages and consequential loss resulting from an accident which he suffered at his place of work on 24th October 1998, when he was 32 years of age. The appellant was and is his employer.
3. The issue as to liability was compromised on a 75/25 basis in the claimant's favour. Accordingly, the judge was concerned only with damages.
4. The circumstances of the accident were, briefly, as follows. The claimant was helping to move some heavy industrial ingots, each of which weighed approximately 2 tonnes. One ingot rolled towards another, momentarily trapping the claimant's left leg. Fortunately, the ingots rebounded off each other and the claimant was able to free his leg, thus saving himself from potentially much more serious injuries. In the event, he suffered a broken bone above the ankle and also damage to the cartilage of his left knee and to the knee ligaments. He also suffered a crush-type injury to his lower leg, which initially caused a degree of numbness in the area of his left shin. It is this crush-type injury which lies at the heart of the present dispute. He returned to work on 17th March 1999 and continued working overtime, as he had been accustomed to do prior to the accident.
5. It was common ground between the two expert medical witness, namely Mr Alistair Fraser-Moodie, a consultant in accident and emergency medicine called on behalf of the claimant, and Mr Ian Stockley, a consultant orthopaedic surgeon called on behalf of the appellant, that, by about October 1999 -- that is to say, about a year after the accident -- the fracture to the claimant's left leg had healed satisfactorily and his knee had also recovered from the damage caused by the accident. There remained, however, the crush-type injury to his left leg.
6. By mid-2000 the claimant was complaining of increased sensation in the area of his left shin, which had replaced the numbness from which he had previously suffered in that area. In a letter dated 19th July 2000 to the appellant's solicitors, Mr Fraser-Moodie referred to this symptom in the following terms:

"What this man has suffered is some irritation to the nerves. This has resulted in him being more sensitive over the area of his left shin. So he has not got reduced sensation but hypersensitivity. When a nerve is injured in the skin this can lead to partial or complete numbness. Sometimes it can leave increased sensitivity when the nerve continues to be irritated. This is what he is complaining of at the moment affecting the whole of his left shin."

On 24th September 2000 the claimant gave up all overtime work, although he continued working normal shifts.

7. In a report dated 6th July 2001 Mr Fraser-Moodie recorded that the claimant was still having problems with his left shin. He continued:

"He feels as if there is a swelling of his left shin everyday. This is painful and is worse the longer he is on his feet. He rests and the pain improves but never completely goes away.

This can wake him up at night. This does interfere with his work."

This is the first record of a complaint by the claimant of pain in his left shin, as opposed to hypersensitivity.

8. Immediately before the commencement of the trial, the two medical witnesses, who had, for some reason -- and I think, most unfortunately -- not met earlier, discussed the case together. In the course of that discussion they also examined the claimant. The result was a handwritten document setting out areas of agreement and disagreement. They were agreed that there were no long-term problems arising out of the fracture of the claimant's left leg, nor any continuing accident-related damage to his left knee. They described the claimant's "present complaint" in the following terms:

"Increased sensitivity to touch in areas running down the inner and outside of the lower leg. There is an area in between -- a long thin strip -- of normal sensation."

That part of the document is signed by both Mr Fraser-Moodie and Mr Stockley. There follows a section of the document in which Mr Stockley's views are set out. He says this:

"I cannot account for the areas of abnormal sensation/tenderness. They do not fit with anatomical dermatomes. I would expect some problems with his ankle or foot if he had a significant problem in his calf.

I cannot think of a pathological process which would account for his current symptoms.

I don't know why he cannot work like he could previously. I know of no medical condition which would limit him the way he says."

That is followed by a section of the document written by Mr Fraser-Moodie, in which he said this:

"So he has damaged the sensory nerves to his left lower leg in the initial crush injury. These nerves have recovered to leave him with increased sensitivity. I have seen this before in patients who have suffered crush injuries. Sometimes this area of increased sensation resolves but in his case after over three years it is likely to be permanent."

9. The hearing then commenced. The claimant was the first witness to give evidence. He gave evidence-in-chief of pain and swelling in the area of his left shin. When asked by his counsel, Mr Bleasdale QC, who also appears for him on this appeal, as to his ability to work overtime, the claimant replied at page 17D of the transcript:

"It got gradually more and more difficult; if I did perhaps two 12 hour shifts in a week it was taking me longer to recover from doing that overtime each time I did it, so I would end up making the gaps bigger in between."

Mr Bleasdale then asked him what was the physical difficulty that was causing him a problem. The claimant replied at page 17E of the transcript:

"It was the feeling down around my shin area, as the day progressed my shin swells up, the more it swells up the more -- it's a kind of pressure feeling on both surfaces of my shin area. By the end of a working day it starts to become unbearable."

In answer to a later question, the claimant, referring to his left shin, said this at page 17, F-G:

"It's very sore; anything at all that touches it, it just feels like a very deep bruising sensation."

Thus, the claimant's complaint before the judge was not so much hypersensitivity, as had been recorded by the two medical witnesses in the handwritten document to which I referred a moment ago, but pain and swelling in the area of the left shin, as recorded by Mr Fraser-Moodie in his report, to which I referred earlier.

10. The medical experts were then called. In his oral evidence, under cross-examination by Mr Finlay, appearing for the appellant (as he does on this appeal), Mr Fraser-Moodie said that he could not explain the cause of the pain which the claimant was suffering or of the swelling of which he also complained, but it is clear from his evidence that he considered that these symptoms were developments from the earlier hypersensitivity. Thus, in re-examination he agreed, in response to questioning from the judge, that he had found a consistent history, in the sense that things had developed in a particular way and in a way which made logical sense. (See the transcript at page 61, F to G.)
11. In the course of his evidence-in-chief Mr Stockley was asked by Mr Finlay about the pain of which the claimant was complaining. Mr Stockley responded as follows, at page 68B of the transcript:

"I think people have pain for several years, it's difficult; you get into like a chronic pain syndrome, there's no question there has been injury to the leg here and we've had trauma, and nerve pain, if it is caused by the nerves, is a very difficult thing to treat, but people have pain, get in a vicious cycle with psychological factors, et cetera, et cetera, and chronic pain is very hard to treat, and I think Mr McMylor is in a chronic pain type of syndrome. He is doing his best to work, he is working long hours, and he is taking a lot of analgesia, but he still has pain."

Mr Stockley went on to say that he accepted that the claimant was feeling pain and was not malingering, but he could not explain the reason for the pain in anatomical terms. In cross-examination Mr Stockley was asked by Mr Bleasdale, at page 69G of the transcript:

"Does that lead you to the opinion therefore that there is a psychological component -- it is not a criticism if you come to this view, I just want to explore it -- a psychological component to the claimant's pain and suffering which is secondary to the physical effects of the accident."

Mr Stockley replied:

"I think there is, yes."

12. I can now turn to the judgment. The judge undertook a detailed and careful review of the medical evidence and of the various reports which Mr Fraser-Moodie and, later, Mr Stockley had produced. He then summarised their oral evidence. Having done so, he continued as follows, at page 11B of the transcript:

"Mr Stockley did however make a important and in my view perfectly reasonable concession. He likened the present state of affairs to a chronic pain syndrome, and he added that such nerve pain is very difficult to treat. He accepted that the Claimant was a genuine person, that he too found nothing to suggest that the Claimant was malingering, and although Mr Stockley could not explain in medical terms precisely what was happening, he accepted that the pain was there for this Claimant. He also explained it in terms of psychological overlay.

The medical evidence does present me with very real problems, because the possibilities of chronic pain syndrome or psychological overlay do not appear in any of the medical reports. I have no psychologist's report, but I have had heard from two Senior Consultants who both accept that the Claimant genuinely considers he suffers this pain. It seems to me therefore that I can accept that evidence, even though the route by which the doctors have got to that point of view is obscure even to them. I appreciate that neither of them are psychologists but they ultimately adopted a consistent approach, they both have years of experience, and the precise reasons for the pain do not, in my view, matter against such a background. I therefore find that the Claimant does suffer from the pain alleged. I do not accept the Defendant's contentions that this is a post-accident complaint unattributable to the accident. I find as a fact that there has been a development in the Claimant's problems from numbness to hypersensitivity and ultimately also to significant pain in the left shin. As both doctors consider him to be genuine and given that his complaint lies in the area of chronic pain syndrome, I do not consider it matters if there was a late onset of pain. In this case there was a crush injury caused substantially by the Defendant's negligence and that led directly by various stages to the present state of affairs."

Thus, the judge found that the pain of which the claimant was complaining had a psychological element and that it was caused by the accident, in that the initial numbness had developed into hypersensitivity, which had, in turn, developed into significant pain in the left shin.

13. The judge then considered what would be the appropriate amount to award by way of general damages. He took into account the nature of the symptoms of which the claimant was complaining, including the present and future ongoing pain. He noted that some three and a half years had elapsed since the accident and observed that he should allow for the pain to continue at least for a reasonable period into the future. In the result, he concluded that an appropriate award by way of general damages was £15,000 on a full liability basis.
14. The judge then turned to the claim for special damages and first to the claim for loss of earnings by reason of the claimant's inability to work overtime. Figures had been agreed for the periods from the date of the accident until 17th March 1999, when the claimant was off work, and from that date until 24th September 2000, but there was an issue as to the claim in relation to the period from then until the date of the trial, 14th March 2002.
15. The judge rejected the appellant's suggestion that the claimant was not prevented by his injuries from doing overtime. On this aspect of the case the judge said this, on page 19 of the judgment at letter C:

" ... I reject the Defendant's suggestion that in any circumstances, or in all the circumstances, the claimant could nevertheless have done overtime. My view of the claimant's evidence was that he was a man who was attempting to do all he could. The pain during any overtime period may perhaps have been no greater than that which occurred during his normal working hours, but it seems to me that an 8 hour shift brought him to a pain threshold which he was genuinely unable to cross. I find the problem of him not being able to do overtime is perhaps exacerbated by the fact that overtime came in tranches of not less than four hours. That is a lot of extra hours on top of a very hard physical day. It was just too much for this Claimant given the level the pain which he considered, and from which I found he appropriately considered, he suffered."

16. In assessing damages for loss of overtime, the judge took as the appropriate comparator another employee of the appellant, a Mr Grant. In the result, he concluded that the appropriate figure was £50 per week. Thus, for the 56-week period prior to trial, the total figure, on a full liability basis, amounted to £2,800.
17. The judge then turned to the submissions made on behalf of the appellant that the claimant had failed to mitigate his loss. The appellant had submitted that the claimant could have been a despatch clerk, but the judge rejected that submission and there is no appeal from that conclusion.
18. The judge then turned to the claim for special damages in respect of the cost of prescriptions, and accepted the claimant's figure of £252 for the cost of prescriptions up to the date of trial.
19. The judge then turned to future losses. Once again, he was faced with a claim in relation to prescription charges in the future, in respect of which he awarded a global sum of £1,000.
20. The judge then turned to the more substantial claim for future loss, being the claim in respect of loss of overtime. The judge proceeded on the basis that the multiplicand was £50 per week or £2,600 per annum. As to the multiplier, the judge considered that there was a reasonable chance that the claimant would return to overtime in due course, when he was able to do so. The judge also took into account the evidence which he had heard to the effect that the appellants were considerate employers who would do all they could to help the claimant. Taking those factors into consideration, the judge concluded that the appropriate multiplier was 11, given the nature of the claimant's injuries and, as he put it, "the uncertainties facing heavy industry in the Western hemisphere."
21. Thus the net result of the judge's conclusions was that the total claim, on a full liability basis, was as follows:

(1) General damages: £15,000 plus interest amounting to £700.50, making a total of £15,700.50.

(2) Past loss of earnings: £4,593.67.

(3) Past prescription costs: £252.

(4) Future prescription costs: £1,000.

(5) Future loss of overtime: £28,600.

This gave a total, on a full liability basis, of £50,751.87. 75 per cent of that sum is £38,063.90, which is the figure in respect of which the judge entered judgment in the claimant's favour.

22. The judge, as I mentioned earlier, refused permission to appeal. He expressed his reasons for refusing such permission as follows:

"Medical evidence changed during course of trial. Judgment given upon basis agreed by doctors in evidence but not set out in their medical reports. I drew fair and reasonable inferences from the joint medical position notwithstanding that views expressed were outside specific expertise of doctors concerned. Both doctors senior practitioners with wide experience. Hence potential future losses could be estimated on a reasonable basis."

23. Giving permission to appeal, Hale LJ said this:

"If it be the case that the evidence was that there was no discernible organic cause for the pain and swelling of which the claimant complained (although Mr Fraser-Moodie appears to supply one in his letter of 1 October 2001), then it is arguable that the judge should not have inferred a psychological condition attributable to the accident, or at least valued the consequences in the way that he did, without appropriate expert evidence. I hold out no great prospect of success: given that both experts and the judge accepted that the claimant was indeed feeling such pain and that there were neurological symptoms in the same area which Mr Fraser-Moodie had detected at an early stage, it is questionable in the modern climate how far it is necessary and proportionate to go in seeking expert evidence to support such inferences."

24. In effect, four issues are raised on this appeal. The first issue is directed to the judge's findings that the pain and swelling of which the claimant complained was caused by the accident and that it prevented the claimant from working overtime after September 2000. Mr Finlay submits that there was no sufficient evidence before the judge on which he could make such findings; further or alternatively, such findings were based on inferences which were procedurally unfair to the appellant.
25. The second issue is whether the judge's award of £15,000 by way of general damages was excessive. The appellant submits that the right figure would be £5,000.
26. The third issue is whether the judge's assessment of damages for loss of overtime, past and future, and prescription costs was excessive.
27. The fourth issue is whether the judge ought to have held that the claimant failed to mitigate his loss.
28. On the first issue Mr Finlay submits that, in effect, the claimant changed his case at trial from a complaint of hypersensitivity, as described by the medical witnesses in the handwritten document to which I referred earlier under the heading "Present Complaint", to a complaint of pain and swelling for which neither of the medical witnesses could provide an anatomical or organic explanation. He pointed out that, in a letter to the appellant's solicitors dated 1st October 2001, that being the letter referred to by Hale LJ, Mr Fraser-Moodie said:

"As far as I can see this hypersensitive area is the sole reason for him not being able to work overtime."

Mr Finlay submits that if the claimant had wished to rely on a psychological origin for the pain, he should have called expert evidence to that effect from a witness who was experienced in that field and should have sought an adjournment in order to do so. He further submits that in any event Mr Stockley did not concede a psychological cause of the pain, from which the claimant was admittedly suffering; he was doing no more than accepting that that might be a possibility. Mr Finlay submits that he never made any diagnosis to that effect, nor for that matter was he qualified to do so.

29. Mr Finlay further submits that there was no evidence, or no sufficient evidence, before the judge on which he could find that the pain was caused by the accident. Nor, he submits, was there any, or any sufficient, evidence to support the claimant's assertion that, although he could work a normal eight-hour shift, he could not then go on to work overtime. Mr Finlay submits that, given the general uncertainty in the evidence in relation to the pain of which the claimant was complaining, it was unfair for the judge to draw inferences of fact from that evidence in favour of the claimant.
30. On the second issue Mr Finlay submits, for substantially the same reasons, that, on the evidence, or lack of it, before the judge, the award of £15,000 by way of general damages was manifestly excessive.
31. On the third issue Mr Finlay repeats his submissions as to the lack of evidence that the claimant was prevented from working overtime and further submits that a multiplier of 11 for future loss of earnings from overtime is excessive. Mr Finlay suggests that the judge should have applied a different multiplier; alternatively, that he should not have adopted a multiplier test at all, but should have awarded a lump sum. He submits that, on this aspect of the assessment, the judge embarked on what was in substance an exercise in speculation. As to prescription costs, past and future, he submits that, since, on his submission, the pain was not, or could not be found to be, caused by the accident, there should be no allowance for painkillers.
32. On the fourth issue he submits that the judge ought to have investigated whether the claimant might have taken a post which required lighter work and which might have been better remunerated.
33. In his written skeleton argument Mr Bleasdale submits, on the first issue, that an examination of Mr Stockley' evidence reveals that he clearly accepted that the claimant was suffering from "chronic pain syndrome". He submits that this acceptance was well within the competence of Mr Stockley and that it would have been disproportionate to require further evidence on this aspect. He points out that Mr Stockley did not say that he felt inappropriately qualified. As to causation, Mr Bleasdale submits that the judge was fully entitled to find, on the basis of the expert evidence, that the pain had developed from the hypersensitivity, which had, in turn, developed from the initial numbness and hence that the pain had been caused by the accident.
34. On the second issue, general damages, Mr Bleasdale submits that the judge's analysis was entirely fair and the result one which he was entitled to reach.
35. On the third issue Mr Bleasdale submits that the judge's assessment of damages for loss of overtime, past and future, derived from his findings of fact, being findings which he was entitled to make on the evidence before him. He submits that it was a matter for the judge what multiplier to adopt and that a multiplier of 11 was entirely reasonable.
36. On the fourth issue Mr Bleasdale submits that the question of lighter work not having been raised in evidence before the judge, to consider it further would be to enter the realm of speculation.
37. I can now state my own conclusions.
38. Causation. In my judgment there was ample evidence before the judge to justify his finding that the pain which, as Mr Stockley accepted, the claimant was suffering in the area of his left shin was caused by the accident. That was Mr Fraser-Moodie's opinion (see his evidence in re-examination, to which I referred earlier) and no other cause was at any stage suggested. I also reject Mr Finlay's submission that additional expert evidence ought to have been adduced. Both Mr Fraser-Moodie and Mr Stockley were of the opinion that the pain of which the claimant was complaining was genuine, both were aware that physical pain may have a degree of what has been referred to as psychological overlay, and both took the view that that might be present in the instant case. In those circumstances an adjournment for the purpose of adducing additional expert evidence directed to the nature and extent of the psychological overlay would in my view have been wholly unjustified. In any event, no adjournment was sought by Mr Finlay.
39. Inability to work overtime. The judge's finding to that affect, at page 19C and following of the transcript quoted earlier, was based on the claimant's own evidence. The judge was fully entitled to accept that evidence and I can see no basis on which his finding could be challenged.
40. General damages. I can see no basis whatever for interfering with the judge's assessment of general damages. The figure of £15,000 was, as it seems to me, well within a reasonable range.
41. Loss of overtime, past and future, and prescription charges, past and future. Given my conclusion that the judge's finding on causation stands, the only remaining issue under this head would appear to be whether the judge applied too high a multiplier. I can, for my part, see no basis on which the judge's selection of a multiplier of 11 could be challenged.
42. Mitigation. The suggestion that the claimant might have sought lighter work was not raised, let alone pursued, before the judge. In the circumstances I can see no basis on which the judge can be criticised for not dealing with it.
43. In short, the judge had to make the necessary findings on the evidence before him and that is exactly what he did.
44. I can see no basis on which the judge's findings can be challenged in this case and I would, accordingly, dismiss this appeal.
45. LORD JUSTICE KENNEDY: I agree.
Appeal dismissed Interest awarded to the respondent at the judgment rate in the sum of £1,126.58 Costs in favour of the respondent.