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 THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)

		Royal Courts of Justice Strand London, WC2
		20th March 2006

1. LORD JUSTICE HOOPER: This is an appeal by Zahra Beigom Mojabi against a decision of Cowell HHJ sitting at the Central London County Court. He ordered the defendants to pay her the sum of £5,465 as damages for the admitted negligence of the first defendant.
2. The claim arose out of a road traffic accident which occurred on 26 February 1997 in Camden Road, London. The appellant was a front seat passenger in a vehicle driven by her husband, Mahmoud Jolghazi. The vehicle in which they were travelling struck a car being driven by the first defendant, who was trying to perform a U-turn. Both cars were driven away afterwards and neither Mr Jolghazi nor the appellant sought medical attention at the scene. At the time of the accident the appellant was nine months pregnant and gave birth very shortly afterwards.
3. Mr Jolghazi was awarded the sum of £3,490; the judge did not regard his evidence as reliable. Mr Jolghazi sought permission to appeal the decision, but that permission was refused after an oral hearing. The appellant gave an account of what happened following the accident to a friend. It reads in part:

"He [the first defendant] stopped and parked his car up on the other side of the road and the man got out of the car and spoke to my husband who also got out. I was injured and had a strained neck with pain in my back. I saw the man run to his car and drive away fast. My husband wrote down the registration number of the car and we went with a witness to Holloway police station where we reported the incident. Because of my injuries I needed to go to hospital later."

The judge was satisfied that the appellant was injured in the way that she had described in this passage. The appellant was admitted to the Whittington Hospital at about 1.10 am the following morning.

4. The judge was faced with a number of particular difficulties in this case. He described them in his judgment as follows, paragraphs 3 to 8:

"3. There are a number of difficulties which face the trial judge in this case. First, Mr Jolghazi was found immediately after the accident to have had a lymphoma in the stomach, for which he was treated with chemotherapy thereafter, from October 1997, with radiotherapy. There is no mention made in any medical note of any injury to him attributable to the accident until 27 November 1997, when the general practioner's note reads: 'Back pain longstanding since RTA, ref physio', and that is in Volume 3 at page 333. Happily, by 12 November 1998 the lymphoma was in remission.

"4. Secondly, Mrs Jolghazi was about nine months' pregnant at the time of the accident, and she gave birth to their first child, a son, on Monday 3 March. He was noticed in later years to be somewhat retarded in development. The claimants understandably associate that feature with the accident, although there is no medical evidence of a causative connection between the two. The son also had, I am quite satisfied, what the medical profession colloquially calls Mongolian Blue Spot. It is not in fact a bruise at all; and it is quite well known in medical circles that such a birth mark, as it is, should not be treated as evidence of abuse of children. But at any rate the claimants, it seems, thought that there was a bruise on their son, which they attributed to the accident. Later on, on 13 July 1999, another son was born to the claimants.

"5. The third problem is that the medical experts disagree, both the orthopaedic experts and the psychiatrists. No psychiatrist saw either of the claimants until more than five years after the accident. The orthopaedic expert for the claimants, as she became, had originally been appointed, and the psychiatric expert for the defendant had originally been appointed jointly. The first of the orthopaedic experts to see the claimants, a Miss Ang, first saw them on 31 July 1999, nearly two-and-a-half years after the accident, and the second, a Mr Beverley, firs saw them on 2 May 2002, more than five years after the accident. I pause to say that there was an enormous amount to read, produced by the experts, which may be somewhat out of proportion to the usefulness of the evidence that any of them could give, on account of the fact that they all saw the claimants so long after the event.

"6. There is a further difficulty. The trial was set down for four days. Unfortunately, because of the limited availability of the orthopaedic experts and the running out of time on 29 April, it became necessary for their cross-examination to be adjourned to a date far into the future. In retrospect perhaps, that may have been as well because neither of them had seen the notes from The Whittington relating to the admission of Mrs Jolghazi in the early hours of 27 February 1997 but the psychiatric experts did give evidence on the third day of the trial, that is 30 April 2003. There is nothing further to hear on 1 May.

"7. The case was refixed for hearing on 6 and 7 November 2003, but there was a considerable confusion, the details of which are immaterial, and it was only possible for the case to continue of 6 November. On that day, Mr Beverley gave his evidence and Miss Ang started her evidence, though it is right to point out that each of them had given a summary of their conclusions and a summary of their disagreement orally on 29 April 2003, but that, without any cross-examination of either, was done so that I could have some idea of where the disagreement lay. Eventually, the matter was fixed to come on yesterday, 1 July, and I am now giving judgment on 2 July.

"8. The days of the trial in April are now so distant that neither I nor counsel could exactly recall why I had ringed certain matters in the schedule of damages, but it is understood that they were all matters which do not fall to, or were not to, be claimed by the claimants. But that is an instance of the difficulty that all concerned have had as a result of two very long adjournments. It is of course one of the reasons why this court was set up to be a County Court Centre, so that cases could run on until they finished. But what upset that notion in this case was the availability of all these experts."

5. At paragraph 40 of his judgment the judge turned to the case for and against the appellant having rejected much of her husband's claim. However, while considering her husband's claim at paragraph 35, the judge had this to say about both claimants:

"35. Mr Power, counsel for the claimants, pointed out that a number of other features, the first being that Mr Beverley was viewing everything from a distance of more than five years, whereas Miss Ang had seen the claimant in July 1999. IN fact the report of Miss Ang in July 1999 tends to support the overall impression that such injury as had been sustained was a soft tissue injury which had resolved in a period of about a year to 15 months, possibly a little longer in the case of Mrs Jolghazi and, to that extent of course Miss Ang's evidence is a very valuable guide to the broad sequence, which was that everything improved up to a point in about 1998, confirmed by her report in 1999, and then there was the remarkable deterioration of the condition of both the claimants, which I will come to later on."

6. I turn to paragraph 40 and following:

"40. I come to Mrs Jolghazi. Whether or not I am writing concluding, on the balance of probabilities, that Mr Jolghazi sustained some strain in the accident I have no doubt at all that Mrs Jolghazi did sustain a strained neck and had pain in her back. I do not think it was more than a soft tissue injury. There was no positive diagnosis of anything serious made by the Whittington Hospital. Indeed, the note made some time in relation to her being there between 27 February and 1 March says 'Question mark – spine injury.' By 23 January1998 there was a similar report from the same physiotherapist. This is what the physiotherapist said: 'On examination subjectively, the patient complained of pain in the neck and the lumbar spine aggravated by picking up the new baby. Objectively, the patient had sharp pain with neck flexion and slight pain with lateral flexion to the left and right. There was some pain on palpation in the cervical spine and lumbar spine. Treatment consisted of mobilisation of the back and neck, along with a home exercise routine to strengthen the muscles in the lower back, improve mobility and posture of the neck and the low back. On discharge, subjectively the patient complained of slight pain in the neck and low back. Objectively, the patient had full range of movement in the back and neck with slight pain, with neck flexion and anterior flexion in standing.'

"41. Then there is the report of Mr Thilagarajah, which, in order not to make this judgment too long, I would simply say was to be read for what it says in detail. He says in one part of it, on page 102(d) 'It is clear that the accident has resulted in the following injuries: minor head injury with contusional injury of left frontal region of the head, spraining of the neck, contusional injury of interior abdominal wall caused by the seatbelt, spraining of lower back, contusion of left thigh.' Later on he says 'It is now over 12 months since the accident and she still has some residual symptoms in her neck. The spraining of the lower back seems to have resolved, but she still has some discomfort on certain movements of the neck.' He also, I should point out, refers to that baby suffering injuries but I am quite sure that he is wrong about that. Nevertheless it seems to me that his report sets out fairly what Mrs Jolghazi's condition was at the time …

"43. In relation to Mrs Jolghazi, a general practitioner had noted that she was going to Iran for two weeks and says 'Feels good now and denies depression?' Although one must not put too much weight on that, that seems to me to fit the general impression I have from the other evidence that by the summer of 198 Mrs Jolghazi had largely recovered fro the soft tissue injury, though it was considerably worse than Mr Jolghazi's and may have gone on for a bit longer.

"44. We also know that Mrs Jolghazi returned to work after maternity leave and she took a GCSE Maths exam in the summer of 1998. In June 1998 she gave up her teaching; she taught amongst other things gym; and broadly it seems that she was well on the way to recovery by the summer of 1998. There was, as I am bound to deal with, the serious deterioration that followed later. Mrs Jolghazi did undoubtedly suffer the diagnosis of adjustment disorder for a period of 14 to 15 months. That is Dr Reevely's evidence.

"45. I just want to say something about the deterioration that occurred to both the claimants. This was first evident to a doctor when Miss Ang saw the claimants in June 2001, that is four years after the accident. It followed an early recovery, as I have indicated, by reference to Mr Thilagarajah's notes and, in particular in the case of Mr Jolghazi, there is very little evidence of complaint about his back in the immediate months following the accident. All that leads one to conclude that the deterioration was not caused by the accident, but was caused by a combination of other things. There was the pregnancy and birth of the first child, the stress of the lymphoma of Mr Jolghazi and it cannot be overlooked that by January 2002 after Miss Ang saw them for a second time Mrs Jolghazi had fallen, as one of the notes says, twice when out shopping. There is also that point that Mrs Jolghazi had suffered some sciatica before the accident.

"46. As I have indicated, this is a much more serious matter than that of Mr Jolghazi, because there is the adjustment disorder as well. I have come to the conclusion that the appropriate amount to award in her case is the figure of £5,000.

"47. The next matter that I have to deal with is the Schedule of Special Damage. There is much that is said in the schedules of both the claimants about loss of earnings, although they are not claimed to begin until 1 July 1998. It seems to me that, by that time, the effects of the acci8dent had really worn off and the effects of all the other worries and troubles were about to begin, which later caused the deterioration. I have considered very carefully whether, in the case of Mrs Jolghazi, it would be right to award one year's loss of earnings from 1 July 1998 onwards, when she had just gone to Iran in June. But I do not think the case for that has really been made out; and it is for the claimant to make it out. Having had a son it is very difficult to know what would have been her course and, as I say, it seems to me the effect of the accident was dwindling by this stage. So I am not satisfied that there is a case for a loss of earnings in the case of Mrs Jolghazi. I should have said that there is certainly not in the case of Mr Jolghazi because on any view the minor injury had recovered."

7. The four grounds of appeal upon which permission was granted all relate to the manner in which the judge failed, it is said, properly to consider and take into account in his judgment the evidence of the consultant orthopaedic surgeon called on behalf of the appellant, Miss Ang. Those grounds are:

"The Learned Judge failed to take account of or deal in his judgment in any way with the expert orthopaedic medical report on the appellant of Miss Ang dated 5.08.99.

"The Learned Judge failed, in assessing the appellant's damages, to have regard to the uncontested evidence of Miss Ang relating to the appellant's condition in 1999.

"The Learned Judge erred in finding that the appellant was largely over the effects of her accident by the summer o f1998 without mentioning or dealing in any way with the said report of Miss Ang which suggested that the initially optimistic prognosis of Dr Thilagarajah had not been fulfilled in her case.

"The Learned Judged erred in finding that there was deterioration first evident to a doctor in June 2001 and failed, in determining the causation of the symptoms than present, to have regard to the said report of Miss Ang dated 5.08.99."

8. Miss Ang had given evidence the day before the judgment and thus her evidence did not suffer from the difficulties to which the judge referred to in his judgment and which I have set out above. In paragraph 41 of his judgment (which I have cited) the judge invites the reader to look at the report of Mr Thilagarajah in more detail. I do so:

"Present examination: Neck – Mrs Mojabi pointed to the back of the neck on the right side as the site of the recurring pain. There was no muscle spasm or tenderness noted over the cervical spine or related soft tissues.

"Movements of the neck were of good range but lateral flexion and forward flexion gave rise to pain over the back of the neck.

"Shoulders/Arms – No abnormality detected.

"Back – In order to respect the couple's religious sensitivities, a complete examination was not done but the limited examination was adequate for the purposes of this medical report.

"Her dorso-lumbar spine presented with a good range of movements and straight-leg raise was normal at 90 degrees on both sides.

"There was no obvious neurological deficit in the arms or legs and her standing posture was normal and so was her gait.

[Passage omitted]

"It is now over 12 months since the accident and she still has residual symptoms in her neck. The spraining of the lower back seems to have resolved but she still has some discomfort on certain movements of the neck. These are not incapacitating and at the rate she is progressing I would expect her to be completely symptom-free by the end of this year/early next year. Although the baby suffered contusional injuries most likely caused by the restraining seatbelt, these do not, as far as I am aware, seem to have caused any disability to the child."

9. Miss Ang saw both the appellant and her husband on 31 July 1999; in the case of the appellant, that was some two weeks after the birth of her second child. That was the first time that Miss Ang saw either the appellant or her husband in connection with these proceedings. She prepared a report which is dated 5 August and is to be found in the respondent's first bundle at page 151. The report was prepared at a time when most of the appellant's hospital and general practitioner notes were not available to Miss Ang, something which enabled Mr Moody in cross examination to undermine some of her conclusions. According to the report dated 5 August:

"Mrs Mojabi still suffers from quite severe neck pain and low back pain."

10. Her back pain, so Miss Ang has been told had limited her activities. The appellant required painkillers. The report then continues on pages 154 and 155:

"Examination: On examination, I note that Mrs Mojabi is just two weeks post-partum. She looks reasonable healthy but walks on a level with a mild limp.

"She describes maximal pain as being in the midline of C4, C5, C6 and C7 with radiating pain to the left posterior cervical muscles. Cervical spinal movements are extremely good (post-partum) accompanied by pain in the area described.

"Bilateral shoulder movements are full and pain-free. Elbow and wrist movements are also full and pain-free.

"Examination of both upper limb reflexes confirm no loss of tendon reflexes, no loss of sensation.

"Regarding the low back, there is maximal tenderness at L4/5, L5/S1 are of the lumbar spine. There is reduced lumbo-sacral spinal movement and forward flexion measures only 7.5cm. There is also increased tenderness over the left trochanteric hip region radiating down the upper third of the thigh, mainly around the soft tissue.

"Lying down, I confirm that straight-leg raising on the right side is 100 degrees, on the left side 90 degrees with pain referred to the low back. There is no evidence of sciatic nerve involvement and tendon reflexes, ankle reflexes and motor power in both lower limbs are good.

"Hip movements are full and pain-free.

"DIAGNOSIS: As a result of being involved in the above road traffic accident, Mrs Mojabi had sustained;

"Mild concussion as evidenced by vomiting and loss of consciousness.

"Cervical whiplash injury which is partially settling down.

"Chronic refractory low-back pain not responding to physiotherapy.

"Left trochanteric soft-tissue injury, possibly with trochanteric bursitis.

"Regarding her cervical whiplash, my examination today confirms there is still some degree of muscle spasm, but by Mrs Mojabi's admission has improved since the accident. Unfortunately the lower back is still extremely troublesome and has limited her activity in a rather severe way. Further physiotherapy has already been arranged on the NHS. I do not think this back pain is going to settle down easily and would recommend an MRI scan for her back. Mrs Mojabi had no history of back problems prior to the accident and further investigation I the form of an MRI scan is indicated, at least for future prognosis.

"Regarding the left trochanteric pain, this is almost certainly soft tissue and should respond to the ultrasound with or without corticosteroid injection."

She made a number of other reports, but the thrust of the appellant's argument relates to the report, the conclusions of which I have just set out.

11. The principal complaint made on behalf of the appellant relates to paragraph 35, where it is said:

"The learned judge misstated the effect of the report given by Miss Ang in August 1999. It will be remembered that he said in paragraph 35 that the report of that time 'tends to support the overall impression that such injury as had been sustained, was a soft tissue injury which had resolved in a period of about a year to fifteen months, possibly a little longer in the case of Mrs Jolghazi …'"

12. It is said, having regard to the contents of the report which I have just set out, that the judge was wrong to summarise the report in this way. I agree with that submission.
13. Mr Moody for the respondent submits, however, that as a result of his cross-examination, Miss Ang had materially altered her position as set out in that report. He submits that the judge was in paragraph 35 in effect accurately describing the evidence as it was at the close of the case, the day before the judge gave his judgment.
14. There was no dispute that in 1999, the appellant had continued to complain about pain to the neck and back. Those complaints can be found not only in the report of Miss Ang, but can also be found in the material from the general practitioner. The issue, however, was whether it was the accident which was causing that pain or whether it was some other cause. As the passage from the judgment makes clear, the judge was quite satisfied that by at least 2001, there had been a very substantial deterioration; that is reflected in a claim made by the appellant for disability benefit, which paints a truly unhappy picture of the appellant at that stage. The judge found that that very substantial deterioration was not due to the accident. In so finding, he not only relied upon the evidence but he relied upon a submission made by Mr Power on behalf of the appellant, which stated in the first part:

"Miss Ang's evidence was that the deterioration in Mrs Jolghazi's condition could not be explained in orthopaedic terms …"

15. The concession continues in a way that is important, in my view, for the resolution of this appeal because Mr Power also conceded:

"The orthopaedic consequences of the accident resolved to a tolerable level within a short period of time of the accident."

He made that concession on the basis of evidence given by Miss Ang when being cross-examined by Mr Moody. He also reminded the judge that Miss Ang had considered that psychological factors had a considerable impact on the appellant's perception of pain.

16. I turn back to the passages from the judgment which I have already set out. The judge goes through the material in paragraphs 40 and onwards, material which relates to the period coming up to the end of 1998, early 1999. I have added to his account of that material the fuller passages from the report of Mr Thilagarajah.
17. There is no dispute in this court that the judge was there accurately describing a great deal of material, suggesting that the appellant had largely recovered from what he described as "the soft tissue injuries" by some time in about 1998. All that material was put to Miss Ang by Mr Moody in cross-examination, and Miss Ang made an important concession, namely that what was found in those reports by the various people who were examining the appellant was "consistent with ordinary recovery". Again in line with the concession, the transcript makes it clear that Miss Ang accepted that there had been a substantial deterioration and that that deterioration could not be explained on an orthopaedic basis. I turn to page 172 of the transcript:

"Question: So insofar as she suffered orthopaedic injuries in this accident are you saying that essentially what she did was suffer a whiplash injury, if you want to call it that, of the neck, strained the neck.

"Answer: Yes.

"Question: And a strain to the back, that the orthopaedic consequences of that action resolved within a fairly short period of time?

"Answer: Certainly it was. I mean, whatever it is has gone to a tolerable level.

"Question: Yes.

"Answer: I mean, that is not to say that she is cured. I don't think people get cured on this kind of thing or recover but most of us can get on with that kind of (inaudible) of MRI findings and even clinical findings, some tenderness in the neck and back."

18. It seems to me clear that when Miss Ang was accepting that the orthopaedic consequences of the accident had been resolved to a tolerable level within a fairly short period of time, she was referring to a period of about 1998. I say that because she had already made the concession that the material that was put to her from the earlier period was material which showed that what was occurring was consistent with normal recovery.
19. One further passage in the transcript should also be referred to, and that relates to the position of the MRI scan. In her original report she had written that she had recommended an MRI scan to be done. She was cross-examined about that and page 173 she was asked about one of her findings as to whether it was merely a possibility and then the question continues in this way:

"Question: But in the past you have offered the opinion as a possibility that what was found on the MRI scan may have actually been physically, structurally, organically caused by the accident and that that is the cause of the continuing symptoms but as I understand it, what you are saying now is …

"Answer: It is one possibility.

"Question: That is a possibility. But you are not saying that that is the probability.

"Answer: I can't prove it."

20. Mr Moody returned to that topic at page 178:

"Question: Before we get there because it is a very difficult and complicated argument as to what the MRI scan shows.

"Answer: Yes, I know. I know, yes.

"Question: Whether it was caused in the accident or whether it is degeneration or something but if it is not your case that what we see on the MRI scan was caused in the accident and that what we see on the MRI scan is not the cause of the continuing deteriorating complaints, if that is only a possibility and you are not saying that that is a probability in this case, then I think we probably don't need to go into that detail.

"Answer: I cannot prove that it was caused by the accident."

21. That passage in the transcript shows, in my judgment, that the MRI scan carried out in accordance with Miss Ang's recommendation did not help the appellant.
22. In my view notwithstanding the error made by the judge in paragraph 35, he was driven to the conclusion which he reached, having regard to all the evidence that preceded the examination by Miss Ang, by the facts of the accident themselves (a comparatively minor accident), by the concessions made on behalf of the appellant to which I have already referred, and by the evidence of Miss Ang, which when analysed underpins the concession that was, in my view, rightly made. For these reasons I would dismiss this appeal.
23. LORD JUSTICE RIX: I agree. I have been troubled in the course of this appeal as to whether the judge's mischaracterisation of Miss Ang's first, August 1999 report, about the appellant is dispositive of the appeal in her favour, necessitating a new trial on quantum. However, on consideration of the full material before the judge, and the judge's judgment as a whole, in particular the answers given by Miss Ang in cross-examination, the psychiatric experts' evidence, which the judge resolved in favour of the defence and their expert, Dr Wembley, and which have not been challenged on this appeal, and the way in which the appellant's trial counsel, not her counsel today, presented closing submissions on her behalf, which I am unable to say did not fairly reflect the evidence at trial as a whole, I am similarly unable to say that the judge's conclusion, that the orthopaedic and psychiatric sequeae of the accident and the appellant's soft tissue injury had ended in time to justify the damages which he awarded, was wrong.
24. LORD JUSTICE LAWS: I agree that this appeal should be dismissed for all the reasons given by my Lord, Lord Justice Hooper.

Order: Appeal dismissed.