COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(MR RECORDER ANDREAE-JONES QC)
SO106381
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE RIX
____________________
Butler & Another |
Appellants |
|
- and - |
||
Thompson |
Respondent |
____________________
Mark Lomas (instructed by Messrs Moore & Blatch) for the Respondent
Hearing date: Thursday 19 May
____________________
Crown Copyright ©
Lord Justice Sedley :
(a) The claimant had not, as she claimed to have done, suffered two weeks of post-traumatic amnesia, but she had experienced difficulties with her memory ever since the accident.
(b) She had undergone a personality change in the wake of the accident: she had become feebler, more anxious, less able to cope at work, more easily tired, depressed.
(c) A mistaken diagnosis of severe brain trauma, based on a temporary misreading of a SPECT scan in late 2000, which had caused the claimant great distress, had not been a new intervening cause of her symptoms.
(d) It was common ground that it was possible to suffer brain damage which did not show on a scan.
(e) The profound change in the claimant's wellbeing following the accident, which "nothing in her medical and emotional background can explain", made it more probable than not that her symptoms were the result of brain damage. The alternative hypothesis, that she had suffered a mild whiplash injury, could not explain the sequelae.
(f) The claimant had had to give up teaching. Her current part-time earnings of just over £2,000 a year did not represent a failure to mitigate her loss: although she had agreed that she was able to work more hours, "there is no obligation to work harder than is reasonable".
Was it open to the recorder to find brain damage?
12. I turn to consider the medical evidence. Mr Harvey was originally instructed as a joint expert, p.236. He was heavily criticised by the defendants. He admitted that he was guilty of entering the arena and that he had overlooked the fact that he was jointly instructed. He was also confronted with judicial criticism from another case. He readily accepted the criticism. He recommended further investigation which led to the SPECT Scan, and he reported on the Scan p.244 as follows: "These abnormalities are wholly compatible with the production of the disabilities which she told me about…." This opinion he later retracted. He also considered Dr Leng's report of 8.10.2000. He is a Chartered Clinical psychologist and Consultant Neuropsychologist. At his request the Claimant underwent certain psychological tests. Dr Harvey p.246 opined that "This report stands by itself but confirms that there is a pathological basis to her complaints." Dr Harvey's final report is dated 7.4.04 p.289.1. His conclusions are at p.289.9 paragraph 29.1 "on a strong balance of probabilities she did lose consciousness and was briefly knocked out and this is evidence of a brief period of retrograde amnesia that is probably two weeks or more long." He rejects Dr Schwarz's opinion that her subsequent symptoms are due to psychological cause. On p.289.10 he says "….the whole pattern, the overall picture, is one of somebody who is cognitively not as she was before the accident and I think this is cogent evidence of her having suffered from a traumatic brain injury."
13. Dr. Schwarz was called for the defence. He himself was suffering from personal stress when he gave evidence, as he told me. I do not consider that his evidence was thereby affected. His first report was dated 17.1.02 and was based on various reports from other medical personnel. He analysed the Claimant's medical reports at p.381 and pointed to numerous "episodes of migraine, stress related responses and extended otitis, and episodes of head injury in August 1984 and December 1990". He also pointed to her history of headaches and migraine and depression p.382. At p.384 he states "There is no evidence that Mrs Thompson suffered more than a mild whiplash disturbance…." "Mrs Thompson had a long history of lethargy which went on for a year in association with depression in the period before the accident". This observation was not supported by the evidence. At p.385 he attributed the post-traumatic amnesia "to be due to a mild whiplash disturbance and much more likely to be related to anxiety particularly as she had unfortunately had a previous problem in relation to her mother's death and her responses were much more in keeping with an acute anxiety response". His second report is dated 19.7.02 p.388 and follows an examination of the Claimant in the presence of her husband. He took a history p.389. He was sceptical that she had been knocked out p.393. The examination did not alter his original opinion. The Claimant was unhappy with Dr. Schwarz. She feels that he had already made up his mind and often cut her short.
14. The issue as between Dr Harvey and Dr Schwarz is at the heart of this case, I prefer the evidence of Dr Harvey. Although he concedes criticisms, I was impressed by his evidence. Although I cannot accept the Claimant's evidence of two weeks post-traumatic amnesia, I do accept that there was some degree of that condition, and I do accept that there was some loss of memory of the period before the accident. Notwithstanding the evidence of the Claimant's behaviour immediately after the accident, and the medical records of her examination at the hospital, I find on balance of probabilities that she was indeed momentarily knocked out. It follows that the probabilities are that the accident was the cause of her subsequent difficulties at her employment and at home and in her everyday life.
15. I was referred to some of the literature but I did not find this helpful.
16. I was less impressed by Dr Schwarz. He did come to a conclusion (albeit a provisional one) before seeing the Claimant, and I am of the opinion that the Claimant's reservations about his having made up his mind may have some substance. His qualifications were called into question, but I accept he had admissible evidence to give. In the end a choice between the doctors had to be made on the evidence in the case as a whole.
17. The evidential background to the case was the profound change in the Claimant's well-being after the accident. In my judgment, nothing in her medical or emotional background can explain this, particularly not the mild whiplash injury spoken of by Dr Schwarz. She loved her job, and was good at it. She gave it up for no discernable reason other than her condition. I have been careful to recognise the dangers of the aphorism "post hoc, ergo propter hoc" (it happened after the event, therefore because of the event), but the evidence is so striking that it is compelling.
18. I do not regard the erroneous interpretation of the SPECT Scan as interrupting the chain of causation. First, it was a procedure carried out by and on behalf of both parties. Secondly, there was brain damage caused by the accident in any event. Its misinterpretation does not afford a defence. Further, before the SPECT Scan, the Claimant's problems at work had in practical terms become insurmountable and the employers knew of her condition. They terminated her employment.
9. The Claimant kept a diary page 142 to 190.12. This starts on the 8th September 1998, the day after the accident. The Claimant stated in cross-examination, "It reads as if made at the time". Her evidence was that she had no memory of the first two weeks after the accident. Her husband suggested she keep a diary. For the first two weeks she with the help of her husband jointly reconstructed events. The defendants point to the contents of the entries, and submit that they are clearly contemporaneous. Although I am satisfied that the Claimant is an honest witness, I find it quite impossible to accept her evidence as to how the entries for the first two weeks came to be made. I find that they were made contemporaneously. It follows that there was no complete post-traumatic amnesia. However, I do accept that she suffered difficulties with her memory, such as is referred to at pages 144 and 146.
7.1 ….The most accurate assessment of the seriousness of a closed head injury is made by assessing the duration of the post-traumatic amnesia (PTA). Post-traumatic amnesia is defined as ending when clear and continual memory returns. During this period the patient may have snapshots or lacunae of memory. These may be very vivid and indelibly imprinted on the memory but they remain an isolated series of snapshots in a fog of non-remembering. Sometimes PTA ends abruptly and the patient can define a point at which clear and continual memory returns but very often there is a rather gradual improvement in which there is often a residual impairment of memory and it is very difficult to state categorically that clear and continual memory has returned. ….
14. What I must stress is that post-traumatic amnesia is due to a failure of the patient to lay down new memories. That which is called working memory, colloquially referred to as 'short term memory', can be normal, but no memories are laid down, and thus the patient appears to be sometimes confused, sometimes disorientated, 'not with it', very often repetitive in speech, asking the same question over and over again until another topic impinges, and very often seeming rather vague, lethargic, (just occasionally disinhibited and angry), usually rather lifeless and uninterested in events around them. There is often a querulous questioning, a puzzlement. If a patient is in the throes of post-traumatic amnesia they will not be able to write diaries that contain contents that recall events earlier that day or the day before. By definition they are incapable of laying down these memories.
15. If it is the case that Mrs Thompson's diaries were written contemporaneously, that day, by herself, then she could not have been in PTA during that time. If on the other hand they were written afterwards, as she says in the "NB" I refer to, then she would have had to have been prompted by her family – she herself would have no recollection of these events.
17. I should stress that the recording of complaints in a diary, which are present as the author writes, is compatible with the writer being in the throes of PTA.
18. If it is indeed the case that the diaries of that fortnight were written after the fortnight was over, as long as the Court is satisfied that the content reflects wholly her family's memories and not hers, then there is no reason to doubt that she was in the throes of PTA for that fortnight.
16. However, it must be recalled that during PTA there are very often 'lacunae' or 'snapshots' of memory which are preserved during the amnesic period. These were first recognised by the late Professor Ritchie Russell, who first described the significance of PTA, and the theme of these lacunae was picked up by later authors, notably Sir Charles Symonds and Dr Peter Nathan, writing in the forties and fifties. It might be suggested that Mrs Thompson's memories during the period of PTA which she records in her diaries, if they were written contemporaneously, represent such snapshots of memory, but if that were the case it would be remarkable that none of them have been preserved in her memory after the period of PTA is over. It is one of the features of these snapshots of memory that they are often, but not invariably, recalled in vivid detail for many years afterwards. I have seen patients on whom I have prepared reports years previously, we have met again over different matters, and a repeat history of the patient's recollections after the accident have been identical. I find it improbable that if these diaries were made contemporaneously, and the apparent recording of memory is due to the "snapshots" of memory in PTA, that Mrs Thompson would not have retained these snapshots after her PTA was over.
10. After the accident, the Claimant's evidence was that she was a changed woman. The central issue is whether this is to be attributed to brain injury caused by the accident or to psychological causes. The evidence that she was a changed woman came from many sources. The theme running through her witness statements and those of her witnesses was that she was no longer able to cope with everyday life either at home or at work as a teacher. Her memory was affected, for instance she did not remember that the 24th September 1998 was her birthday Hayley p.104. She was physically weaker and unable to lift or move anything heavy. She returned to work in November 1998 for two days a week, later increased to three days a week. Her difficulties at work are described in detail in the statement of Jennifer Coldwell dated the 2nd January 2002 at p.119. She has problems recalling "what she has to do and what the children had done" paragraph 7 p.121. She found staff meetings a struggle paragraph 8. She put in extra hours to compensate for her mental difficulties paragraph 11. She never really got to grips with the new curriculum paragraph 12. When she increased her working week to five days in January 2000 she struggled with tiredness paragraph 13. She became anxious about an OFSTED visit in March 2001 paragraph 14. Eventually she was signed off work due to depression and anxiety in January 2001. Mr Thompson p.87 paragraph 2.
71. Miss Guggenheim QC has been highly critical of Dr Harvey. She has gone so far as to say he fails to qualify as an independent expert because he is neither independent nor am expert. Reluctantly I have concluded there is some substance in this submission. In my judgment in this case Dr Harvey has not demonstrated the independence a court is entitled to expect. Having started with a differential diagnosis of brain damage or depression he then held on to his preferred diagnosis of brain damage despite numerous warning bells which should have alerted him to revisit the question. Yet his reports assert that he had endeavoured to include in his report matters which might adversely affect the validity of his opinion and that he will notify his solicitors and confirm in writing if his report requires correction or qualification.
72. His expertise is also in question. Like many court medical experts he has retired from the NHS and now only undertakes privately paid work. There can, of course be nothing wrong with that. Sound experience is essential for medical experts but it is of crucial importance that experts keep up with the change. In his first report he said the Claimant had a dysexecutive syndrome. In his second report he said he had been wrong and corrected it to frontal lobe syndrome, a description which, on Professor Dolan's evidence which I accept, is out of date and far too imprecise. He was willing to engage in debate about the merits of SPECT without having the necessary expertise and in case where the merits of SPECT and PET were in issue confessed that he had not kept up to date with the literature on PET. That is not very impressive.
Were the recorder's reasons adequate?
Did the misreading of the SPECT scan break the chain of causation?
18. I do not regard the erroneous interpretation of the SPECT Scan as interrupting the chain of causation. First, it was a procedure carried out by and on behalf of both parties. Secondly, there was brain damage caused by the accident in any event. Its misinterpretation does not afford a defence. Further, before the SPECT Scan, the Claimant's problems at work had in practical terms become insurmountable and the employers knew of her condition. They terminated her employment.
This is in my judgment an adequate explanation of why the recorder did not find the chain of causation to have been broken.
Was the neck pain part of the continuing injury?
20. The Claimant complained of neck pain. In her first statement p.28 the Claimant states paragraph 4 "As the pain in my neck was so severe and persistent, I wore a surgical collar until sometime in October 1998 and I attended a physiotherapist ….". Paragraph 5 "now, some twelve months after the accident I still experience pain and discomfort in my neck when I do the ironing, shopping, gardening DIYs and when I lift anything heavy….". In her second statement 13.2.01 p.37 paragraph 3. She described continuing pain and practical difficulties. In her third statement 3.6.02 paragraph 3 p.49 she complains of symptoms that have worsened. The defendants argued that because the neck seemed to improve before getting worse, there is no temporal link to the accident. Mr Walker was called on behalf of the Claimant and expressed the opinion that the symptoms are attributable to the accident and will continue. Mr Good for the defendant argued that this injury should have resolved itself. But the fact remains that it had not. I accept the Claimant's evidence on this issue.
The claimant's residual earning capacity
25. I have already found that the accident necessarily caused the Claimant to give up her employment as a teacher. There is a joint statement of employment experts (Mr Horton, instructed by the defendants, and Mr Doherty instructed by the Claimant) at p.509. She currently has modest part time employment earning £2017.60 p.a. She obtained this employment through a government agency. She said in evidence that she was capable of working more hours, but there is no obligation to work harder than is reasonable.
26. I find that a return to teaching is just not practical. I take the view that her current earnings are sufficient mitigation. The employment market on any view is uncertain and I regard it as reasonable for the Claimant to earn what she does.
19. When I made my last statement I was doing a voluntary job at Fort Amherst in Chatham consisting of mainly administration work. I continued the voluntary work until the early part of this year. After that I went to Instant Muscle which is a government scheme based on getting people back into the workplace who are on incapacity benefit.
20. This has resulted in me being back at Fort Amherst on a paid basis. I commenced this paid work on 8 April 2003. I work for eight hours per week, doing two four hour sessions for which I receive the minimum wage resulting in £137.60 per calendar month. It is hard for me to accept that I receive the same pay per month in this job that I received for one day when I was teaching. I also receive £144.30 per fortnight incapacity benefit.
21. I cope physically but sometimes come home mentally exhausted. When I was there on a voluntary basis I was working in the afternoons. I now work mornings which I find easier to cope with. I am still on the Instant Muscle Books.
22. I do go into work if I have a bad head day but I travel by bus and my manager is aware of my situation.
23. In the souvenir shop I stock take every three months. I kept miscounting. Now I will do it in half hourly sessions and can cope with that. I have a job learning new things and have short term memory loss. I have not been able to master using the till. There are only three buttons to press and I still cannot do it. I have an entry in my diary dated 12 May 2003 which says "Still have to master the till. A huge issue with me. John gave me a whole hour using it". There is a further entry dated 27 May 2003 which says "two weeks have passed and I couldn't open the till. No matter what I did the till and I are not compatible. Why can I not manage this simple task?"
24. We have recently had the busiest time of the year. This is because the Fort stages "Halloween Horrors". The Fort is a series of underground tunnels and within the tunnels they set up different scenes. Thirty people are taken around every five minutes, around different scenes to try to frighten them. People come from all over the county to visit it. It is their largest money making scheme of the year. Thousands of pounds are made over the course of six days.
25. I was asked to work extra hours and I was also asked to man the phones. From mid September until 1 November I was going to work these extra hours in readiness for this occasion. I was asked to be responsible for taking the bookings. I found it difficult to cope with. I got into a muddle by sending wrong card receipts to the wrong people. I gave out incorrect information and wrongly charged people. I sent out incorrect tickets. I sealed down an envelope having taken a credit card booking and I couldn't match up the credit card slip with the tickets I was putting in the envelope. I realised I had put the wrong enclosure in. I had difficulty in multi tasking, phones ringing, people queuing up for tickets, etc.
26. John, my Manager, was aware of what was going on and at the end of the day he quietly called me in and instead he arranged for two volunteer staff who he paid to do the job instead of me doing it. It made me feel terrifically inadequate. This cost the Fort a lot of money, but John is terrifically tolerant with me.
27. Now I stay upstairs in the Office and do dull admin tasks such as sticking on stamps. Stamp sticking on is so deadly dull. I want so desperately to have a job that challenges me but also I can cope with but I don't know where to draw the fine line. I have recently been provided with a computer at work but I cannot take on new information. I used one in the classroom previously without any problems, because the programmes were aimed at five year olds and not spread sheets etc. I feel I am slowly learning the basics, e.g. typing letters in Microsoft Word. I will master this computer, but it will be a struggle. I will not give in.
Lord Justice Rix:
Lord Justice Clarke: