England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(Application of the Respondent for Permission to Appeal)

		Royal Courts of Justice Strand London WC2 Wednesday, 13th February 2002

Wednesday, 13th February 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal. On a consideration of the papers, I directed that it be heard orally inter partes. I have had the advantage of helpful skeleton arguments from counsel and equally helpful oral submissions.
2. The defendant seeks permission to appeal against a judgment of Mr Recorder IS Fairwood given in writing on 17th September 2001. The claimant had claimed damages as a result of an accident on 3rd August 1993 when she slipped and fell in the course of her employment with the defendant. Liability had been admitted to the extent of 95 per cent. The trial was as to issues of causation and quantum and took place over four days following which judgment was reserved. Counsel do not know the basis on which the 5 per cent deduction was, by agreement, made, but it does not affect the outcome of present application.
3. Evidence was given at the hearing before the Recorder by the claimant, Karen Mason, two doctors called on her behalf, Mr Wright, a consultant forensic psychologist, and Mr Britto, a consultant psychiatrist. The defendant called Dr Johnson, a consultant psychiatrist. The issue before the Recorder, as expressed in the skeleton argument on the applicants' behalf, is whether the claimant was suffering from a chronic pain disorder or whether she was malingering. An express claim of malingering was, following discussion between counsel, made at the outset of the trial. The judge put it in this way when summarising the issues:

"They are as follows:

i) that the Claimant does not suffer from chronic pain disorder

ii) that the explanation for her presentation is that she is malingering."

4. Further consequential submissions are made as to attributability, remoteness, and the basis upon which loss of earnings should be assessed, but that first issue was the central one at the trial.
5. The Recorder found in favour of the claimant and he summarised the evidence of the medical witnesses. He posed the question at section 5:

"Is Miss Mason suffering from Chronic Pain Disorder or is she malingering...?"

6. He pointed out that the burden of proof was on the claimant on the balance of probabilities. He fully recognised that the claimant was an unimpressive witness. He found that she had been factually unreliable in many instances and in numerous respects. Having made that acknowledgment, the judge nevertheless concluded that the claimant was not malingering but was suffering from Chronic Pain Disorder. He stated that, on balance, he preferred the claimant's medical evidence to that of the defendant. He analysed the evidence of the claimant and gave reasons for his finding that she was not malingering. He then went on to hold that the Chronic Pain Disorder was attributable to the slipping and falling on 3rd August 1993.
7. He went on to make findings which were, to a considerable extent, favourable to the defendant, in that he found that symptoms were exaggerated and that the care claim was overstated. He also found that the claimant would probably in time have suffered from the condition in any event. The Recorder found that on the balance of probabilities the claimant would have continued in her pre-accident state for a further four-and-a-half years.
8. In his helpful and persuasive submissions on behalf of the applicants, Mr Lemmy's central submission is in relation to the judge's handling of the medical evidence. He draws attention to the fact that Mr Wright accepted that if his view of the credibility of the claimant was not right and the background facts were otherwise then he believed them to be, it could affect his medical opinion.
9. The submission is that once the judge, on important matters of fact, found that the claimant's evidence was not reliable, he could not then rely on the opinion of Mr Wright, which was based on different assumptions from what the facts were. Paragraph 8 of the skeleton provides:

"The learned judge considered that it was for the court to decide how Mr Wright's opinion would have been affected by the inaccuracies in the history he was given. It is submitted that that was wrong, assuming as the Defendant contends that the difference between what the Claimant told Mr Wright and what was accepted was significant, then that was a matter in relation to which the only person who could assist would be Mr Wright himself. Further, having come to the conclusion that it was for the court to decide how Mr Wright's opinion would have been affected the learned judge then failed to undertake that exercise."

10. While I have not seen the transcript it is suggested that Mr Wright declined to approach the case and to express an opinion on other possible findings of fact. It should be added that Mr Wright had conducted a psychometric test to which plainly he attributed considerable importance.
11. In relation to Dr Britto, attention is drawn to the fact that the judge had reservations about his evidence. It is submitted that the judge should have spelt out what his reservations were. The applicants were entitled to know the extent of reservations, bearing in mind that Dr Britto's conclusion was accepted. The suggestion was made that Dr Britto had materially changed his evidence following a conference with counsel.
12. Emphasis is placed, in particular in relation to a finding of fact, on the Recorder's finding at page 7 of the judgment that the claimant did not complain of back pain to anyone in authority until 8th September 1993, that is about five weeks after the accident. It was necessary to review Mr Wright's evidence, it is submitted, because he had not approached the case on that basis. The only way in which that can now be done is by way of a retrial.
13. This problem is one which frequently confronts judges. They rightly do not make findings of fact until they have heard all the evidence. Opinion evidence will often have been given on the basis of findings of fact which the judge is not in the event confirming. It is submitted that in this case the judge should have ensured that the medical opinions were based upon his findings of fact, even if that involved recalling witnesses. It is submitted that the judge has followed circular reasoning, in that he has relied on the medical evidence to show that the claimant was not malingering, and yet that medical evidence is inconsistent with findings of fact which the Recorder made.
14. This was a trial at which the evidence was very carefully scrutinised with the assistance of counsel, and scrutinised at some length. The claimant's medical witnesses were in court throughout the trial and would have heard the claimant giving her evidence.
15. In my judgment it must generally be open to a judge to perform his own assessment of the medical evidence based upon his own findings of fact. I have no doubt that in everyone's minds at the time evidence was being given was the difficult question of the credibility of the claimant. Both the witnesses and the judge would have been conscious of the obvious difficulty she was presenting in what counsel for the proposed respondent submits was a colourful and unusual trial. The credibility of the claimant was under constant assessment, and it was known that some of her evidence of fact was seriously being questioned. As Mr Walmsley puts it, it was clear that she was a disturbed lady. He submits that her evidence may be unreliable without, at the same time, it being established that she was malingering. He submits that the defendant's advisers placed a high burden upon themselves when asserting that the claimant was malingering, although, of course, overall, the burden of proof was on her to establish that this was a case of Chronic Pain Disorder and that she was not malingering.
16. While I follow the logical cogency of Mr Lemmy's submission on this central issue, it is not one which I can accept as arguably correct. The situation is not in my judgment an unusual one. As I have stated, judges frequently have to reassess medical evidence on the basis of their, the judge's, own assessment of the claimant which they form in the course of the trial. There is not a duty on judges to make findings of fact as they go along, and then to put those findings to the expert witnesses so that the witnesses can be requestioned on the basis of the findings. Such a course would render much litigation impossible. I do not rule out the possibility that there may be cases where expert witnesses need to be recalled following findings of fact by the judge, but this case is far from coming into that category. The judge has spelt out his reasons for the conclusions he reached. He was entitled to prefer the claimant's medical evidence to that of the defendant. He was entitled, having regard to the expert evidence as a whole, to find that the claimant was not malingering.
17. It is submitted that his judgment was insufficiently reasoned. I do not accept that submission as an arguable one. The judge set out conscientiously the reasons upon which he decided and upon which he relied. I have no doubt that he did assess the medical evidence on the basis of the findings of fact which he made.
18. Mr Walmsley has referred to a specific answer of Mr Wright at the end of his evidence when the matter had been met as generally had been explored with him, he underlined the weight he placed upon his psychometric tests, and he stated:

"I would expect a very different profile if she was malingering."

19. Mr Lemmy submits that it should have been put to him, as I understood it, the question what his opinion would be if she was malingering. That I do not regard as realistic. If Mr Wright had been of the opinion that she was malingering, then plainly his opinion would be different. However, Mr Lemmy made the more general point that further exploration of Mr Wright's evidence would have been appropriate on the basis of the judge's findings of fact. I have already considered that point. I do not consider that its force has created an arguable case that this court should order a retrial, either on the basis that the judge conducted the case improperly, or on the basis that, upon a consideration by the Court of Appeal, a further hearing of the evidence is required.
20. I have concentrated upon that point because it is the one which rightly, in my view, Mr Lemmy has most emphasised. I deal briefly with the other points made. I have referred to the evidence of Dr Britto. I do not find any arguable defect in the judge's treatment of it. The judge was entitled to find in my view that an unreliable claimant was still a claimant who was not malingering. The judge was entitled to reach that view on the basis of the evidence as a whole before him. It is submitted that judge's treatment of the video evidence was insufficient. He should have given weight to it in considering the vital question of the credibility of the claimant. That would be contrary to the view of all three experts, who were disposed to limit the value of the video evidence. I find no arguable case that the judgment is reversible on that ground.
21. It is further submitted that the judge was not entitled to find on the balance of probabilities that there was any back injury. The judge deals with it in this way:

"The Claimant is so factually unreliable I cannot accept her oral evidence that she complained to Casualty of back pain, or anyone else in authority for that matter until 8th September 1993. [I mentioned that point earlier] I do however find that when she slipped and fell on 3rd August 1993 at work she probably did fall backwards onto her hands and bottom thereby sustaining what is described in the orthopaedic reports as a minor 'soft tissue' contusion to the lower spine. I infer, on the balance of probabilities that it was perceived pain from this event which she eventually complained of to her GP on 8 September 1993."

22. In my judgment, the judge was entitled to make both those findings. The second of them was of course the subject of his earlier findings, to which I have already referred. The first of them was by way of inference. It is difficult for the applicants to argue he was not entitled to make it when they have accepted liability, and accepted liability apparently on the basis that the claimant fell. In the circumstances, it was open to the judge to infer that when she fell she did sustain a minor soft contusion to the lower spine.
23. I do not see merit in the further arguments expressed in the skeleton argument. The point is made that the diagnostic criteria which were before the court did not entitle the judge to make the findings he did. In his detailed judgment he was, in my judgment, entitled to reach the conclusion and I find no additional merit in that ground beyond the grounds which I have already considered.
24. For the reasons I have given this application is refused.
(Costs in the application) ------------------