England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Friday, 31st May 2002

1. MR. JUSTICE DOUGLAS BROWN: This is an appeal by the claimant, Judith Skerman, from the judgment of Judge Lloyd in the Brighton County Court on 19th July 2001, whereby he directed that judgment be entered in her favour for £70,266.94 inclusive of interest.
2. The claimant's claim arose out of injuries that she sustained to her back in the course of her employment on 25th November 1996. There is no appeal by the defendants against the judge's findings that they were guilty of negligence and a breach of statutory duty, and that the claimant was not guilty of any contributory negligence. The negligence, he found, lay in not assessing the risk involved in the task that she was performing and the failure to provide training and instruction. The only issue we have to determine relates to the amount of the award of damages.
3. In brief, the judge held that, because of factors unrelated to the accident, she would probably have sustained the same damage to her back at about five years from the date that she actually sustained it. He limited the award of damages accordingly. The appellant's case was that, on the finding which she asks us to substitute on this issue, that would have resulted in an award of some £350,000.
4. The claimant was 25 years old in November 1996. She had left school at the age of 16 with five passes at CSE. After working in a shop for three months, she obtained a job as an assembler for an electronics company where she worked for the next two years. She then went to work for the defendant company where her work involved accepting deliveries, unpacking and sorting components. She had been looking for a change from factory work and the new job offered her the opportunity to make more money, coupled with the prospects of promotion. She had only been working for her new employers for some seven weeks when she sustained her back injury. Prior to that day she had been engaged in dealing with smaller deliveries. On this occasion she was confronted with a wooden slatted crate containing computer equipment packaged in cardboard. A fellow employee, Mr Brixey, went and fetched a crowbar and started removing the wooden slats. He then went off for lunch and the claimant took over. She had never been trained in the task of dismantling a crate like this, but she was keen to take on the task and thought that she could do it better than Mr Brixey. She wanted to show that she did not lack initiative and to enhance her chances of promotion. Her supervisor was not available to give help or guidance. She had been working at the task of removing the slats with the crowbar for about 15 minutes when she felt a twinge in her back. At that time she was trying to lever apart a side slat at the point where it was joined to the bottom of the crate. The crowbar was about two feet long. It had a fork at the end. She was bent right over with her knees straight, holding it in both hands. She was going up and down to try and twist the slat when she felt a twinge. She went on with the job and took about another 45 minutes to remove all the slats.
5. After finishing this task she completed her day's work and went home. Her back was very painful that night. She went into work the next day. The pain was worse that evening. The pain in her left buttock was going down to her knee. She saw her general practitioner the following morning who recommended physiotherapy. The physiotherapist diagnosed a slipped disc in January 1997. Although traction made her feel better her back was worse, and eventually, in January 1997, her physiotherapist referred her to hospital for an MRI scan. On 21st January, whilst closing a curtain at home, she felt a click in her back and severe pain. This was followed by bladder problems, pain in her legs and pins and needles. On 22nd January she was admitted to hospital. The following day there was a full scan of her back. She was told that she had three slipped discs. She had by now lost control of her bladder. She was transferred to a local neurosurgical unit where an operation was performed on 29th January. Following her operation her other symptoms receded but her back pain has remained. She was still unable to work at the time of the trial. The judge found that she was unlikely to be fit enough to work again or strong enough to bear a child. At the time of the trial she was engaged to be married.
6. Damages were agreed on a sliding scale, governed by the resolution of the question whether her back problems would have incapacitated her in any event and, if so, when. So far as loss of earnings were concerned, the parties had agreed the multiplicand and left it to the judge to decide the issue on which the medical experts were unable to reach agreement. There was no issue but that her injury was caused when she used the crowbar to open the crate.
7. It was common ground between the surgeons that a normal intervertebral disc does not, in the ordinary course of events, prolapse. In the claimant's case, however, although she was only 25, there were three factors in her history which showed that she was more at risk of developing severe low back injury than most people of her age. The first of these was a chronic cough associated with asthma, the second the fact that she smoked which caused dehydration of the discs and the third was that in 1989 and 1994 she had had episodes of low back ache with variable sciatica. In 1989 she had been advised to stop smoking because of her asthma but she had not taken this advice. The judge found that she was suffering from some measure of degenerative disease in her spine at the time of the accident. She used to go to the gym, to go swimming and had never done any specific exercise to make her back strong. Only one of the medical experts, Mr. Birch, a consultant orthopaedic surgeon, who gave evidence for the claimant, had seen the January 1997 MRI scan. The judge accepted his description of it. The trouble started at L3/4 level. She had a straight spine. The discs above this level were normal. Below that level the scan appeared to show a left sided para-central prolapse without significant central spinal stenosis at L4/5 level and a central disc bulge at the level of the disc at L5/S1 level which perhaps affected the left side rather than the right. Mr. Birch felt that the evidence from the scan indicated that the degenerative process involved at the sites of the three lowest discs was not particularly of longstanding. The scan showed that there were no chronic degenerative changes of the lumbar intervertebral disc using the assessment method devised by Dr. Moddick, an American radiologist.
8. Mr. Birch's evidence as to acceleration was contained, first, in a letter to the claimant's solicitor following his original report which did not deal with the subject. In that letter he dealt specifically with this question from the claimant's solicitors:

"On page 19 paragraph 53, you noted that 'Miss Skerman had a history of back pain albeit not severe, was also a smoker and had at times a productive cough which would have put her at risk of low back injury in an occupational setting'. Are you indicating by this statement that Miss Skerman was liable to suffer this type of injury in any event? If so what would have been the trigger mechanism? Or are you saying that some kind of less severe injury may have occurred in the occupational setting but without the serious consequences suffered by Miss Skerman, perhaps a further sciatic attack."

Part of his reply to that question was this:

"It happened that she sustained an injury in an occupational setting and therefore there was an increased risk in this setting. I do not think that Miss Skerman would necessarily have had this injury without the precipitating event but like any assessment of risk, if one accepts that there are predisposing factors to any medical condition if the circumstances are right, then an injury as a result of a precipitating event is more likely."

9. There followed this important sentence:

"Miss Skerman may have prolapsed her disc in the normal course of events, such as doing something strenuous at home."

10. Then on 17th April 2001, in response to a report provided by Mr. Good, a consultant orthopaedic surgeon who originally was instructed as a joint medical witness, but who was then reporting on behalf of the defendant and whose opinion was that the accidental injury had brought forward her serious symptoms by less than a year, Mr. Birch in response said this:

"Without this incident I do not believe that there was anything in her history to suggest that she would have had a symptomatic disc herniation with its disastrous neurological consequences in the short to medium term from November 1996 onwards. I have, in the past, stated that I thought that Miss Skerman would have gone on to have low back pain as a result of degenerative change in her lumbar spine but not necessarily the catastrophic neurological problems that she had as a result of the incident in 1996."

11. It is to be noted in that letter, responding to an estimate of no more than a year for the symptoms to develop, that was the extent of Mr. Birch's opinion. He did not offer any view, or even a hint of any view, that any longer period than the medium term was under consideration. In evidence he said that short to medium term meant one to five years.
12. Then both surgeons, after a telephone conversation, produced a joint statement. Mr. Good and Mr. Birch agreed that acceleration is a difficult issue to address. They both agreed that Miss Skerman had a vulnerable back. At some point in the future she would have had symptoms from this. If these symptoms had not arisen as a result of her episode at work in 1996, they might have arisen if she had carried out a similar act at any other time. However, it was impossible, in the opinion of Mr Good and Mr Birch, to determine when this might have occurred. Mr. Birch, in evidence-in-chief, when asked about his conclusion as to her previous disposition to a prolapsed intervertebral disc, said that his conclusion was that she would not have had an inevitable prolapse of either L/4 or L5/S1 intervertebral discs but she may later in life. In the claimant's skeleton argument, prepared in advance of the trial, there was a reference to an expectation that Mr. Birch would in evidence indicate that, by later in life, he meant at the end of her working life or beyond. But in evidence-in-chief he did not deal with this. I will mention shortly how the matter came out in cross-examination. Mr. Good's evidence was this. I read the central passage of it:

"Quite clearly, she had a highly vulnerable low back in the form of chronic degenerative change within the two lower lumbar segments as evidenced by the several MRI scans.

A normal intervertebral disc does not prolapse. It has to be 'ripe' to prolapse."

13. He referred to a paper by Professor Porter, orthopaedic surgeon, which contained references which supported his view, and he concluded:

"The incident under discussion has therefore only brought forward symptoms by a small period of time - it is impossible to say with any precision but certainly well within a year."

14. In evidence, he explained the impossibility phrase in the joint statement by saying that it was impossible to say with any precision within the year. It might be a month, two months or three weeks. It was impossible to say but a year was probably too long.
15. The claimant's account of the accident, which the judge accepted, was this:

"She said she was working on the side of the crate at the time, that is the side slats. She was bent right over. Her knees were straight. She had the crowbar in both hands and was trying to lever apart a wide slat at the point where it was joined to the bottom of the crate. She was going up and down and trying to twist it. She twisted her back at the same time. As she was bending over in this posture she felt a twinge in her back."

16. The judge also had evidence from engineers as to the force applied to her back at the time of the accident. He preferred the evidence of Mr. Dawson, the defendant's engineer, which the judge summarised in his judgment in this way:

"The range of forces that are likely to be required when using a two foot long crowbar to open/dismantle a wooden crate of the material type are unlikely to be excessive for a female. A maximum force is likely to have been about 18 kilogrammes and not 'in excess of the recommended 25 kilogrammes' as pleaded. Generally, however, the force level would have been significantly lower, down to about 4 kilogrammes, and in circumstances that the material crowbar was three feet long the force, hence risk of injury, would have been lower still. There is no indication that the task or duration was excessive."

17. The judge's finding on that evidence was this:

"I find that, even allowing for the accident taking place in the posture she described, the force was not greater than 18 kilogrammes and certainly not in excess of 25 kilogrammes. As Mr Dawson says, 18 kilogrammes was the maximum in reality and much of the work would have exerted less force. This is borne out by the claimant only feeling one twinge in her back in the first quarter of an hour and none in the remaining three quarters of an hour."

18. The judge had before him a report of Mr. Wan, an accident and emergency consultant who was reporting on behalf of the defendant, whose report was not relied on and who did not give evidence. However, without objection from Miss Perry, counsel for the claimant, Mr Russell, counsel for the defendant, asked the claimant about a passage in Mr. Wan's report, where he said:

"When I interviewed Miss Skerman she informed me that she did not use a lot of force in the process."

19. She was asked, when she gave evidence, if she had said that to him. She said that she had told the doctor that she did use a lot of force. She was positive about that.
20. When the judge came to deal with causation he reviewed at length the written and oral evidence of Mr. Birch and Mr. Good. The judge then referred to the joint report rather critically and said this about it:

"This is a short document. I do not know who decided on the wording. I am aware that joint reports are done to see if agreement can be reached to save time. Sometimes they do achieve these aims. However, in this case, although the last sentence of paragraph 5 appears to suggest agreement on a crucial issue, in fact neither of those aims was achieved in this case. I have to say that I am surprised that either expert felt able to sign up to that sentence."

21. That is the last sentence of the joint agreement, which joint report I have already quoted. He then read Mr. Dawson's conclusion, to which I have referred, together with his finding as to the force involved. He then went on to give his decision. He said this:

"In terms of risk of such an injury happening anywhere in the future, it is important in my view to note that she suffered this injury early on in the process. She was a young person, likely to lead an active social and sporting and work life which would in my view have been likely to expose her to forces of up to 18 kilogrammes and, as I have already found, the force at the time of the accident was probably less. She was seeking to become a store manager. In all probability, this would have exposed her to further lifting, pushing and moving actions with similar forces. She did go swimming and she lifted weights so there was some risk of such forces in those activities if she acted either hastily or made a mistake. On the totality of the evidence, I think it is crucial that one looks at the totality, I reject the opinion that the acceleration time limit is not greater than one year. However, I also reject the opinion that on the balance of probabilities the claimant would not have suffered a similar injury until the end of the claimant's life or beyond."

22. The judge had had the problem of deciding between the two orthopaedic surgeons. As to their evidence he said this:

"Neither of them can determine whether a similar accident might have occurred. This is the very difficult issue that I have to decide. On the whole, I prefer the evidence of Mr Birch for these reasons: (1) he has more direct experience of spinal work, albeit over a shorter time than Mr Good's general orthopaedic work; (2) Mr Birch gives a far more detailed and argued report; (3) Mr Good did not see the MRI scans. Whilst that is only one part of the evidence, it is in my view a serious drawback; (4) Mr Good seeks to rely heavily on the opinion of others not before this court. However, there are inconsistences in Mr Birch's final opinion and I have referred to them."

23. In concluding his judgment the judge said this:

"I believe that the most likely scenario, in this extremely difficult and imprecise area, is to be found in the letter of 17th April."

which I have quoted. The judge also quotes it:

"I do accept that her back was vulnerable, as I have previously stated, but without this incident I do not believe there was anything in her history to suggest that she would have had a symptomatic disc herniation with its disastrous neurological consequences in the short to medium term from November 1996. In his oral evidence, as I have said, he defines short as one year and medium as five. These words can only mean that his view was that after five years at least the possibility existed of her having had such an injury. On the totality of the evidence, I find the probability is that she would have had such an injury once the five years had expired. Therefore, I propose to assess damages on a five year acceleration basis. That is my judgment."

24. Turning to the appeal, the first three paragraphs of the grounds of appeal are a preamble summarizing the judge's findings and conclusions which are said to be supportive of the claimant's case. He accepted the claimant's evidence. He accepted the agreed engineering evidence that misapplication of a crowbar to open a wooden crate through lack of training would predispose the back to injury, and he preferred the claimant's medical expert to that of the defendant's.
25. The criticism of the judgment is in paragraphs 4 and 5 of the grounds of appeal. These were repeated with vigour and clarity by Miss Perry during the appeal. The first ground is that the judge had no basis whatsoever for his findings on causation. There was no evidence that her lifestyle was likely or probably going to expose her to forces which, coupled with bad posture in the use of heavy implements, would result in a disc prolapse with neurological deficit. Mr. Birch could find nothing in her daily life activities to predispose her to the significant herniation that she sustained. The judge based his findings on commonsense where there was a total absence of evidence to permit him to assume that it was probable that she was bound to sustain similar exposure to forces to cause a like injury. Finally, a finding of five years acceleration on the basis of an exposure to only 18 kilogrammes of force in opening the crate overlooked the agreed evidence of stance and tortion which are of equal or more importance to her than force itself. Those grounds were amplified by Miss Perry in her submissions to us in which, although she accepted that at times Mr. Birch's correspondence and evidence was clumsy, she submitted that the judge had misunderstood or misappreciated the effect of his evidence, which was that up to five years there was a certainty that she would not have had a similar injury and thereafter, taking the whole of his evidence together, the judge should have understood him to be saying that there would have been only low back pain and not a major incident for the rest of her working life. In general, Miss Perry submitted that the judge's findings were fundamentally flawed.
26. Mr. Russell for the respondent supported the judge's reasoning and submitted that there was much evidence which entitled the judge to conclude that this was a five year acceleration case. He referred to the evidence, such as the extent of force required, and the evidence from both surgeons that she had a vulnerable back. He pointed out that Mr. Birch had provided his evidence and opinions in different stages and by different means, and when he was first given an opportunity to respond to Mr. Good's view as to the probability that the injury would have occurred during a year, he did not take that opportunity to introduce his theory as to the whole life and beyond as being the period, but confined himself, when referring to the period, to the expression the short to medium term. Mr. Russell submitted that the judge's findings that the appellant was a young person, likely to lead an active social, sporting and working life, which would have exposed her to further lifting and pushing and moving motions, with similar forces engaged, was a finding that he was entitled to come to on an abundance of evidence.
27. There is no doubt in this case that the judge had a difficult decision on the evidence. Both orthopaedic surgeons agreed that it was a complicated case and that acceleration was a difficult issue to address. On the face of it, the judge was presented with medical opinions which were poles apart. Mr. Good's view was that the disastrous onset of disabling disc prolapses would have happened, at the latest 12 months from November 1996 and probably sooner. On the other hand, Mr. Birch's final expression of view, as can be ascertained from the cross-examination and re-examination of this witness, was that this would probably not have happened during her working life. The judge's task was not helped by the rather eccentrically worded joint statement. Considering the polarity of views, it was remarkable that they felt able to sign up to such a bland document which described the determination of timing as impossible. The judge's approach to the resolution of this apparent conundrum cannot be faulted. He first considered the degree of force likely to be required to cause the injuries which she suffered. He was right to do so because, as he correctly identified, force and posture were an important component of the overall medical opinion. He did that by considering the evidence of both engineers, Mr Matthews for the claimant and Mr Dawson for the defendant. He preferred the evidence of Mr. Dawson and made a clear finding that, even allowing for the acts taking place in the posture the claimant described described, the force was not greater than 18 kilogrammes and probably lower. He then, on the totality of the evidence, rejected Mr. Good's theory that the acceleration time limit was not later than one year. In this appeal his view of Mr. Good's evidence has not been criticised or challenged. He was then faced with the evidence of Mr. Birch. As Miss Perry candidly accepted, there were problems with Mr. Birch's evidence. She submitted that his opinions came through clearly but there were, she now accepted, some inconsistencies in his evidence. The judge came to the conclusion that, although overall and on the whole he accepted his evidence, his view that the prolapsed disc would not occur during her working life, was a view that he could not agree with. The judge was unwise to make any finding adverse to the claimant about the disputed conversation with Mr. Wan, not called and not relied and whose notes of consultation could not be scrutinised on behalf of the claimant. It was not a ground of appeal. It is clear that the judge, in coming to his conclusion on force, paid no attention to that particular conversation. Having found the force at the time was probably less than 18 kilogrammes, itself a safe weight, he made his own assessment of the risk based on the claimant's work ambitions and lifestyle. The judge did not simply use his commonsense, although this is a valuable commodity. There was clearly evidence before the judge as to how she had spent her leisure time and what her working ambitions were. The judge was fully entitled, on a commonsense basis, to look at the kind of activities that would arise, both at play and at work. The judge reviewed Mr. Birch's evidence but not uncritically. He found that the most likely scenario, in an extremely difficult and imprecise area, was to be found in Mr. Birch's letter of 17th April 2001. He did not refer to the first letter that the witness had provided after his first report from which I quoted but the judge plainly, having reviewed all the evidence carefully, had that in mind. Having accepted that the claimant's back was vulnerable because of her past history of back pain, he said that without this incident there was not anything in her history to suggest that she would have had a symptomatic disc herniation with its disastrous neurological background consequences in the short to medium term from November 1996 onwards. He based his five years on the five year medium term, which was the only clear and consistent indication that Mr Birch gave during his reporting or in his evidence. Miss Perry argued that this was taken out of context. In my view the judge was entitled to interpret that statement as representing his view that, after five years, the possibility existed that she would have such an injury. Looking at all the evidence, the judge came to the view that this was a probability.
28. In some respects, largely because of the confused way in which Mr. Birch gave his evidence, I have not found this appeal altogether easy. The evidence was at some points imprecise. The judge took much pain in studying the case and he reserved his judgment. I have come to the conclusion that, after that careful scrutiny, the judge was entitled to come the view that he did. In the result, I would dismiss the appeal.
29. LORD JUSTICE WALLER: I agree and would add one short word of my own. Miss Perry has really founded her submissions on the suggestion first that the judge accepted Mr. Birch's evidence and then, secondly, that the judge did not reflect what Mr. Birch had actually said. The truth is, as it seems to me, that the judge did not accept uncritically Mr. Birch's evidence. Indeed, he said quite clearly that there were inconsistencies in it. It is true that he did prefer Mr Birch on the whole to Mr. Good, but he was not uncritical of Mr. Birch.
30. Secondly, so far as Mr. Birch was concerned, in the key area relating to acceleration, Mr Birch had said different things at different times. My Lord has quoted the two letters, the first of 15th April 1998 (at page 52 of the bundle), the second of 17th April 2001 (at page 128 of the bundle). Those letters reflect what he was saying at that time. It is then true to say that he sought to explain what he was saying in the letter of 17th April in his evidence, and may be said to be saying something different at that stage. But the judge did not have to accept Mr. Birch's final explanation and was entitled, on the totality of the evidence and all that Mr. Birch had said, to form the view that he did. As I would see it, the key to the rather difficult case was those letters, both of which have been quoted by my Lord. In the light of the opinions expressed in those documents, it seems to me that the judge cannot be criticised for forming the conclusion that he did. I too would dismiss the appeal.
Order: Appeal dismissed with costs and those costs to be set off against the order for costs made against the defendant at trial. (Order not part of the judgment of the court)