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 HIS HONOUR JUDGE ELLY
(Reading County Court)

		Royal Courts of Justice Strand London, WC2
		1 April 2003

1. LORD JUSTICE KAY: The claimant, Marina Carol Pearce, had the considerable misfortune to suffer three separate road traffic accidents of a similar kind in a period of little under nine months in 1993. The three defendants are the drivers of other vehicles involved in the accidents, each being involved on a distinct occasion. It was accepted that the claimant was not at fault in any of the accidents and that each of the defendants was liable to compensate her for the consequences of the accidents in which they were involved.
2. The first issue to be determined at trial was how much of the total loss and damage she had suffered should fall on each of the defendants. There were also issues of quantification of Mrs Pearce's overall loss and damage. Only one such issue is relevant to this appeal, namely the probable date at which she would have retired from her occupation of teaching but for the happening of these accidents.
3. The claimant commenced two separate sets of proceedings arising out of the accidents. These were consolidated and heard by His Honour Judge Elly in Reading County Court on 10, 11 and 12 June 2002. The judge concluded that each of the three defendants was liable to compensate the claimant in full to the full extent of the loss and damage that she had suffered, save to a limited degree where damage could be identified as solely attributable to a single accident. He further held that as between the three defendants, each of whom was insured, the proportions to be paid were 30 per cent, 30 per cent and 40 per cent in respect of the first, second and third accidents respectively. The loss and damage claim included compensation for loss of earnings and loss of pension rights consequent upon the fact that the claimant had had to cease work as a deputy head teacher, which heads of damage were said to be recoverable against all three defendants.
4. The judge concluded that the claimant would have worked until the age of 60, and calculated the losses of earnings and pension rights accordingly.
5. The first defendant, the driver in the first accident, and the second defendant, the driver in the second accident, each appealed against the finding that they should be liable to any extent for the loss of earnings and pension rights. The first defendant further challenges the judge's decision on the probable age at which the claimant would have ceased work but for her accidents.
6. In the first accident on 5 February 1993 the first defendant was the driver of a car that struck Mrs Pearce's car from the rear as she was starting to turn right into the driveway of her home on the A24 near Horsham. The second defendant was the driver of the car in the second accident on 14 February 1993 who drove his car into collision with the rear of the claimant's vehicle as she was stationary on the same road near to her home waiting to turn right into Warnham village. The third defendant was the driver of the car in the third accident on 29 October 1993. On this occasion the claimant was again stationary waiting to turn right into Warnham village when the third defendant drove into collision with a vehicle behind her car shunting that vehicle into the rear of her car.
7. On each occasion the claimant suffered a whiplash injury and on the third, additionally, suffered a lower back injury. She had not recovered from the effects of the first injury at the time of the second, nor from the combined effects of the first and second at the time of the third.
8. The medical evidence at trial relevant to this appeal came from two doctors, Dr Hicklin called on behalf of the claimant and Mr Coull called on behalf of the third defendant. In addition, there were written medical reports from a third doctor, Mr James, before the court. It was agreed that Mr James' reports should be read as accepted evidence of the medical history, but since he was not called to give evidence no regard was to be paid to his expressions of medical opinion.
9. The claimant did not lose any time at work in the immediate aftermath of any of her accidents. In 1996 she felt obliged to tender her resignation in a letter dated 29 April 1996, which she wrote to the chairman of the governors. The letter included the following explanation as to why she felt she had to cease work:

"It has been an extremely hard decision to make, as Bewbush Middle School and all it stands for, mean a great deal to me. I have found that the cumulative effects of the three road accidents that I was a victim of three years ago, have slowed me down enormously."

In a statement made for these proceedings on 17 September 1999 she explained in some detail the circumstances in which she had ceased work. At page 44 within the trial bundle she said:

"Following the first accident on 5 February 1993, I was troubled by discomfort in my neck and the base of my skull rather than my back or shoulders. I also suffered from headaches for several weeks after the first accident. I also experienced sickness and dizziness as a result of the first accident ..... I had no difficulties with work as a result of the injuries which I suffered in the first accident. At the time of the second accident, in August 1993, I was coming to terms with the effects of the first accident. I did suffer from neck ache but this was not as debilitating before the second accident as it is now. If the discomfort which I suffered in August 1993, before the second accident, had persisted, and I had not had the second or third accidents, I would have been able to continue to work and I would not have found it necessary to give up my job.

Following the second accident, on 23 August 1993, the area of pain extended from the base of my skull and the top of my neck into my lower neck and to both of my shoulders. I recall that I was quite shocked after the second accident as I had previously considered that the place where the accident occurred was quite a safe spot. Following the second accident my confidence in driving decreased. The headaches re-appeared after the second accident. If the pain which I suffered in October 1993, immediately before the third accident, had persisted and I had not had the third accident, I believe that I would have been able to continue working and I would not have found it necessary to give up my job.

Immediately after the third accident, on 29 October 1993, I had back pain. I had not had any back pain after either the first or second accidents. Following the third accident I became particularly nervous about turning right from the A24 into my driveway, and into Warnham. Following the third accident I had a return of headache, nausea and dizziness and neck and shoulder pain but the back pain was sufficiently strong as to make the neck pain appear less noticeable after the third accident. Following the third accident the pain in my neck and shoulders worsened and the number of headaches I experienced greatly increased."

At paragraph 15 (page 51 of the same bundle) she continued:

"The cumulative effect of my headaches, neck and back pain contributed to my decision to resign. It became more painful to physically carry out my duties and it took me longer to carry out my tasks. I could not concentrate on paperwork because I found that if I sat in one position for too long I became very uncomfortable. The pain would distract me. As a result of my injuries, it took me much longer to complete my tasks, and I felt unable to cope and this contributed to my decision to resign. My administrative tasks took a lot longer and I was unable to concentrate due to neck and back pain. I was unable to keep my mind on the work because of my pain. My decision to resign was attributable to my physical discomfort and consequent tiredness caused by difficulties with my administrative and teaching duties."

10. The medical evidence was not really in dispute on these matters. Dr Hicklin and Mr Coull produced a joint statement of medical evidence to which they each assented. Paragraphs 7 to 9 of the schedule read:

"7 They agree that the effect of the three accidents were cumulative.

8 They agree that the direct outcome of these three accidents occurring in rapid succession have been neck and back pain which have progressed to a state of chronicity and a 'chronic pain state' which manifests complex physical, social and emotional facets.

9 They agree that these chronic pain states are recognised outcomes of a proportion of accidents of this type."

11. Their evidence at court was to like effect. In particular, at transcript Vol 2 (page 84 line 1) Dr Hicklin said:

"What Mr Coull and I are quite clear and unanimous about is that these three accidents together are totally responsible for her current state."

Her present state was that described in the joint schedule, neck and back pain which had progressed to a state of chronicity and a chronic pain state which manifested the complex signs of which the doctors spoke. Evidence was given to explain what a chronic pain state was (at Vol 2 page 63). Dr Hickling explained:

"Pain is basically divided into two groups. The first is physiological pain. Physiological pain is what one might almost think of as useful pain. It is pain which tells you when you prick your finger to take your hand away from a needle, the kind of pain which is a direct transmission from the periphery to the centre. It is designed to guard us against outside attack. It is specific to the place; you know where you have been attacked. It also has the important feature of re-setting to zero, that is to say, when the sting is taken away the pain disappears. Then there is pathological pain. Pathological pain differs in several important ways from physiological pain. The first is it often comes from deeper structures and is not so site-specific. It does not necessarily tell you where it originated. The second is that it is not useful, it does not serve any useful purpose. The third is that it develops progressively. The fourth is it modifies the structure and chemistry of the nervous system as it progresses."

He then embarked on a detailed explanation of what he meant and concluded the passage at page 65 line 13:

"So the chronic pain state is a multi-faceted thing with extensions into psychology and physiology and so on but it is a very real entity and very difficult to get rid of and it is the consequence of having a pain on and on and on and the modifications which produces in your method of transmitting and detecting pain."

12. On behalf of the first and second defendants it was argued in the court below, as it is before us, that the evidence shows that if the third accident had not taken place then the probability was that the claimant would never have had to cease work. Accordingly, it was argued that those defendants should not have to bear any part of the liability to compensate her for losses arising from her conclusion that she was no longer able to continue to work.
13. On behalf of the claimant and the third defendant the argument is advanced that it was not merely the third accident which led to these losses but the cumulative effect of these three accidents.
14. The judge, in arriving at his conclusions, said (paragraph 42 of the judgment found at page MM of the bundle):

"Mr Nussey has cited two propositions. First, when it is not possible to identify the effect of an injury on the overall picture it is proper to apportion. The second is that it is a matter of fact what caused the specific loss. If that can be ascertained then the loss falls on the party responsible. In general, I accept the propositions of law. But, on the facts, the experts are agreed that the chronic pain state is caused by the cumulative effects of all three accidents. The loss of employment cannot be put at the door of only one, as Mr Nussey submits."

He continued at paragraph 49:

"The first and second defendants argued that it was the third accident which caused Mrs Pearce to give up work. She said that she did not think she would have done so as a result of the combination of the first two accidents, nor it follows from either of them alone. This seems to me to overlook the cumulative effect of the three accidents upon which both the consultants agree."

15. Before this court Mr Nussey concedes, on behalf of the second defendant, what he described as the end pain - by which I understand him to mean the residual pain after the immediate traumatic effects of each accident had resolved - and any accompanying psychological damage were properly held by the judge, on the medical evidence, to be the consequences of the cumulative effect of the three accidents and that, as a result, each defendant was liable to compensate the claimant for the totality of those long term consequences. He accepts the legal position is that if it is not possible to attribute a resulting condition to one specific event each event has to be accepted as having made a material contribution to the cause of the condition, and that this is sufficient to give rise to liability in tort against the person whose fault gives rise to the event. (See for example Bonnington Castings v Wardlaw [1956] AC 613). However Mr Nussey argues that the loss of employment with its financial consequences can be attributed specifically to the third act. In this regard he relies upon the evidence of the claimant that but for the third accident she believes she would have been able to continue to work.
16. Mr Bate-Williams, on behalf of the first defendant, allies himself with these arguments and, with some justification, points out that if they are correct then they apply even more strongly to the first defendant because the period of time that elapsed after the first accident enabled the claimant to have a real appreciation of the extent of the recovery that she was making. Both the claimant and the third defendant support the reasoning of the judge based, as it was, on the agreed medical evidence.
17. For my part, I have no doubt at all that the judge was right in his conclusion. Once it was conceded, as inevitably it had to be on the evidence, that both the physiological pain and the chronic pain state resulted from the cumulative effect of the three accidents, as was the case once the initial impact of each accident was passed, it seems to me that the claimant is entitled to be compensated not merely for the "end game and psychological state" but for any consequences to which that end pain and psychological state have contributed.
18. On the agreed medical evidence it was the claimant's medical state by 1995/1996, two to three years after the accident, that brought her teaching career to an end. By that time her condition was the result of the cumulative effect of the three accidents and not the direct effect of any one of them. Of course the claimant was right when she said she might well have been able to have continued work if the third accident had not occurred, but that was in the sense explained by my Lord, Lord Justice Clarke, in argument that it was the third accident that triggered the situation. But the cause on the medical evidence was not simply that accident but the cumulation of the three accidents.
19. For these reasons it seems to me that the judge was right in his conclusion that all the three defendants must bear a share of responsibility for the financial consequences of the claimant ceasing work. There is no appeal against the proportions in which he held each ultimately were responsible.
20. The ground advanced by Mr Bate-Williams, on behalf of the first defendant, in respect of the judge's finding that the claimant would work until aged 60 is a separate matter based on evidence called before the judge that many head teachers and deputy teachers retired before the age of 60. Mr Wing, the head teacher at the school at which the claimant taught, gave evidence. At volume 3 of the transcripts (page 9) it was put to him:

"Q. You have mentioned that there has been - I do not think you used the word a 'raft' - but there has been a number of resignations in recent years.

A. Yes, there were. There were such a - - headship and deputy headship, up to about I think it was three or four years ago, people taking early retirement and the government had to stop early retirement for headteachers and deputy heads and now you cannot go unless there is real organisation as within our case.

Q. What age do the top job holders now leave?

A. 55 plus."

On page 14 of the same transcript when cross-examined he was asked at what age he would retire. He said:

"If they are offering early retirement to the head teachers whose schools are being amalgamated who are over 55, I will be 57½ at that stage. Obviously, I have not discussed packages or anything yet but I would expect to be 57½ when I retire."

21. Mr Bate-Williams argues that against that evidence the judge should have concluded that there was at least an identifiable chance that the claimant would have retired before the age of 60 even if she had not had the three accidents. He submits the judge should therefore have gone on to make an allowance, albeit a relatively small one, for that chance in determining the appropriate multiplier in calculating her loss of earnings. The fallacy in that argument is that the judge was not assessing when any teacher might retire but was instead directing his mind as to when the claimant was likely to retire. He had to consider her as an individual and not merely as one of a class of people. He heard evidence from her that she wanted to go on working until the age of 60. I find it impossible to see how, without even hearing such evidence, this court could conclude that that was not a finding of fact open to the judge.
22. Accordingly, that ground too must, in my judgment, fail. It follows that having rejected each of these grounds, I would dismiss each of these appeals.
23. LORD JUSTICE CLARKE: I agree that these appeals should be dismissed for reasons given by Lord Justice Kay.
24. I would shortly summarise the reasons in my own way as follows. (1) The judge held that Mrs Pearce's chronic pain state was caused by the cumulative effect of all three accidents. (2) The appellants do not challenge that conclusion. In any event, there was ample evidence to support it. (3) The appellants concede that it follows that all three defendants were liable for the pain and suffering attributable to that chronic pain state. (4) The judge held that it was that chronic pain state that caused Mrs Pearce to stop work and to sustain the loss of earnings and pension identified by the judge. (5) It follows that the loss of earnings and pension was caused by the cumulative effects of all three accidents. (6) Put another way, it follows that each accident made a material contribution to the chronic pain state and therefore to the loss of earnings and pension. (7) It further follows in the light of a number of decisions of the House of Lords, including Bonnington Castings v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1, that the defendants are all liable to Mrs Pearce by reason of their respective breaches of duty, because their breaches of duty materially contributed both to the chronic pain state and to the loss of earnings and pension consequent upon it. (8) In these circumstances the fact that the first two accidents on their own would not have caused Mrs Pearce to give up work is irrelevant. Her decision to stop work was materially contributed to by each accident and thus by the breach of duty of each of the defendants. (9) In all the circumstances I agree that the judge was right to hold that each defendant was liable to Mrs Pearce.
25. THE VICE-CHANCELLOR: I agree that both appeals should be dismissed for the reasons given by Lord Justice Kay.
Order: Appeals dismissed with the costs subject to detailed assessment on standard basis.