England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(HIS HONOUR JUDGE O' BRIEN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th December 2007

Lord Justice Pill:

1. This is an appeal against a judgment of HHJ O'Brien QC, given at Norwich County Court on 28 February 2007. In an action for damages for personal injury sustained in the course of her employment, Sandra Dawn Thorp ("the claimant") was awarded damages including interest, of just over £11,000 against Alan G Sharp, her employer ("the defendant"). The claimant had sought a much larger sum, the judge stating that there was a vast gulf between the parties' cases, and it is the claimant's appeal on quantum.
2. The accident happened on 3 October 2000, when the claimant was forty-one years old. Liability was admitted. The claimant alleged that the accident had caused a permanent disability by way of chronic pain; the defendant that the effect of the accident was spent within, at most, a period of one year. Substantial medical evidence was called on behalf of the claimant. For the claimant, Mr Grundy, in skeleton form, puts the case in this way:

"The claimant sustained an injury to her right hip; symptoms followed and have continued to date. He accepts that there is no definable orthopaedic cause for the chronic pain. However, the judge accepted on the basis of the witnesses called and her own evidence that she was a genuine and honest witness, though subject to significant exaggeration. In those circumstances it is submitted that the chronic pain which admittedly the claimant suffers flows from the injury to the hip on 3 October 2000. On that date, while working at the defendant's sub-post office and shop, the claimant, when carrying a tray of hot food, tripped on a box of postal bags on the floor. As she fell another member of staff attempted to help her and it was, as the judge put it, quite an awkward sequence of events."

3. The claimant claimed to have heard a crack and felt a pain in her right hip. While it was very sore, she carried on working until the end of her shift but had difficulty walking home. The pain was worse on the following day, which was not a working day. The claimant went to work on 5 October and worked her six-hour shift, although the pain was still bad. She worked until 17 October when she was advised by her employer to go to the doctor. The judge carefully described subsequent events. The first doctor's note read: "Pain in right hip. Limping."
4. X-Rays showed nothing out of order. The claimant returned to work for periods up to 30 June 2001, although there were also medically authorised absences during that period. A few weeks after the claimant finished work she fell, injuring her left knee, and blamed the fall on the problem with her right hip. A course of physiotherapy was arranged, but the claimant attended only six of the sixteen appointments and was discharged.
5. Having considered the medical history and the medical evidence, the judge stated the issue. "Has the claimant satisfied the court of pain suffered beyond twelve months' period is attributable to the index accident and, of course, where I say satisfied, I mean on the balance of probabilities?" His conclusion was, at paragraph 60:

"The pain seems to have coincided with the accident occurring, and except for two periods of three months or so in 2000 and 2001 it has been fairly continuous. However, as Mr Hogarth [that is Mr Hogarth QC who appeared for the defendant at the trial and does so today] points out, first of all the orthopaedic experts say that there is no physical cause for this pain and therefore it is not related, so far as physical matters are concerned, to the accident on 3 October 2000. Secondly, the psychiatrists say that there is no psychiatric illness and there is no psychological cause that they can find for this pain and resultant disability. It is put more simply on the claimant's part that she suffered this accident on this day and her hip has never been right since. I suppose that common sense would say that it must follow from the accident.

61. However, having given the matter a good deal of consideration, I accept Mr Hogarth's submission that the admitted pain cannot on the balance of probabilities be attributed to the accident for which the defendant is responsible, as opposed to some other unknown cause for which the defendant may not be responsible."

6. The judge went on to assess damages. Mr Grundy took up a point with him. The judgment is detailed and lengthy, but Mr Grundy considered the conclusion which I have read, was too briefly put. He sought clarification:

"Bearing in mind my learned friend's submissions late last night on the question of the legal principles of tort, I wonder whether your Honour would explain for the purposes of the judgment as to why your Honour says that the continuing pain is not attributable to the defendants."

The judge replied:

"In order for the claimant to succeed, the claimant must satisfy the court, on the balance of probabilities, the consequences claimed for are caused by the accident; that the orthopaedic evidence is that the accident caused consequences for a maximum period of one year and thereafter did not do so. The psychiatric evidence is that there is no psychiatric illness and so -- as the claimant has not established where the pain and disability arises from, the onus being on her -- it cannot be established that it was something caused by the accident."

Mr Grundy persisted:

"Your Honour's finding is the orthopaedic evidence is twelve months and anything beyond that is not to do with the accident and, in the absence of a psychiatric injury, the claimant loses."

The judge replied:

"In the absence of an identifiable cause, a cause identifiable and attributable to the accident, the case fails."

7. In the course of his judgment, the judge had cited reports from Mr Mann and Mr Phillips – consultant orthopaedic surgeons instructed on behalf of the claimant and defendant respectively. I do not propose to set out the reports in the same detail as the judge did, culminating as they did in a joint report. It is clear that both doctors -- along with Mr Villar, to whom I will refer -- were puzzled by the continuation of pain, and made every effort to enquire into and to investigate the condition, and to make a diagnosis. In his letter of 30 July 2002, Mr Mann stated:

"Even though clinically I believe her pain is coming from her hip, I have not managed to establish a definite diagnosis as of yet and because of this, it is unlikely that surgical treatment would be of benefit to her."

8. Following further investigations, Mr Mann stated on 1 April 2004:

"However I am at a loss to explain the clinical findings under these circumstances and in particular why an injection into her right hip would make such a dramatic difference if the symptoms were coming from her back."

9. There was a suggestion, coming from doctors, that her back was the source of her problems:

"I do not believe [continued Mr Mann] that we will ever be able to put a name to her diagnosis."

10. In his report on 13 April 2004, Mr Phillips stated: "Certainly existing symptoms are, in my view, unrelated to the injury…". His opinion was that they were caused by "a pre-existing degenerative disease of the spine" and that the accident had brought forward an acceleration. That way of putting the claim has not been pursued on behalf of the claimant and, not surprisingly, having regard to the way in which the claim is put. The joint report is dated 6 November 2004. I cite relevant paragraphs:

"2. We are of the opinion that this was a low velocity injury and affected soft tissue.

3. We agree that there is a past history of low back pain in 1997, notably in July, August and October of that year."

"7. We agree that the diagnosis remains uncertain and that there are features of both hip and spinal origin of her pain and disability."

11. Mr Phillips believed that the symptoms should have resolved by three to six months from the time of the injury, whilst Mr Mann believed the symptoms from the injury would have lasted one year. Mr Mann and Mr Phillips agreed that assessing Ms Thorp's psychological status is outside their field of expertise, and recommended an assessment from a clinical psychologist or psychiatrist. In particular, they believed that there should be an appropriate opinion on the presence or absence of illness behaviour. The judge set out at pages 35 and 36 of his judgment the joint opinion.
12. I refer, also, to reports which had been obtained from Mr Villar. Mr Villar, also a consultant orthopaedic surgeon, works at the Cambridge Hip and Knee Unit at the Cambridge Lea Hospital, and the case was referred to him, as a consultant to consultants, on behalf of the claimant. In a report of 21 August 2003 he stated: "clinically I find this very difficult to assess". He accepted that the claimant had excruciating discomfort from the right hip. In a letter to Mr Mann of 11 March 2004, Mr Villar referred to biopsies which he had seen, and stated:

"In essence, I do not think there is anything within the hip itself to explain the patient's discomfort. I do apologise that I cannot be any more helpful on the above."

13. In another letter, Mr Villar referred to the fascinating situation which this case presented. Plainly, the doctors were concerned, in the case of a woman whose complaints they believed to be genuine; to explore every avenue in finding a link between the events of October 2000 and the chronic pain, or finding whether there was some other cause for that chronic pain. It appears to me that the reports of Mr Mann and Mr Phillips, their joint report and their resort to the psychiatrists, indicated their lack of success in providing a diagnosis.
14. The judge referred to psychiatric reports obtained from Dr Webb for the claimant and Dr Guirguis for the defendant. In a joint statement they stated that there was relatively little distance between their opinions. The judge summarised their position in this way:

"47. They also gave oral evidence. Firstly, the claimant has not at any relevant time been suffering any psychiatric illness nor any chronic pain disorder in the strict sense of the expression. Considering the question of chronic pain syndrome -- an expression which both of the psychiatrists reviled -- I think it emerged that, in terms of psychiatric illness, there is no chronic pain syndrome because they identify no psychiatric illness. Thirdly, there is the question of whether the claimant is deliberately malingering, which Dr Webb thought the signs were against but Dr Guirguis recognised as a possibility; though both of them recognised that that is a matter for the court to decide."

15. A clinical psychologist, Mr Spooner, was called and the judge stated that he found the evidence "rather helpful". Mr Spooner rejected a diagnosis of pain disorder. The judge set out Mr Spooner's opinion in the judgment, paragraph 48:

"My reading of the orthopaedic expert's opinion suggests there is no clear diagnosis of the cause of the claimant's pain nor is there any convincing evidence of pathology that might be responsible. This is, of course, not to say that the claimant's pain does not have its origins in a medical condition or muscular, skeletal or neurological damage. However, in the absence of clear pathology, diagnosis of pain disorder resulting solely from a medical condition cannot be definitively diagnosed. For pain disorder to be formally diagnosed as a mental disorder then psychological factors are judged to have an important role in the onset: severity, exacerbation or maintenance of the pain in diagnostic criteria . . . From my review of her background and her medical notes but summarising the other expert opinion in this case, there is nothing obvious from a psychological viewpoint that suggests a psychological component to her pain, and therefore she does not meet diagnostic criteria for pain disorder, in my opinion."

Mr Spooner added:

"The claimant's significantly elevated disclosure and debasement scores and her very low desirability score are suggestive of the concealment of positive aspects of her functioning and the amplification or exaggeration of negative aspects to her functioning, including pain and related impairment. I have no reason to suspect that this was an intentional or deliberate ploy. Experience of pain is very subjective. Pain consists of physical discomfort, the labelling and cognitive interpretation of the meaning of pain, the consumption of attention resources by pain and a set of strategies that are utilised in coping."

16. I have referred to the judge's overall conclusion. Before stating that, he expressed conclusions upon the evidence:

"The conclusion I have formed that she [that is the claimant] is not lying. There is ample evidence, including from medical men, that she is suffering pain. She is plainly a poor historian, which is the way I regard her, completely overlooking the fact that she had returned to work for various periods after the accident because, as I say, I do not think that was a deliberate intention to mislead because it would be perfectly plain that her employment records would be with the defendant, as her counsel submits. But it seems to me to be not inconsistent with the psychologist's assessment of her general IQ. It is perfectly plain that, however unintentionally, the claimant is exaggerating her symptoms of pain. Firstly, there was clearly an apparent resolution after two to three months, (inaudible) [in original] evidence of the account taken by the physiotherapist and later visits to her general practitioner in that period. Secondly, the descriptions given by her in her evidence in court and, indeed, in accounts to the various medical men she has seen are really not borne out by what I have seen on the evidence of her activities on the DVD. Thirdly, Mr Spooner's psychological testing suggested exaggeration and, as I say, I was impressed by his report, and that seemed to tally with the DVD evidence. Of course, the exaggeration may have a considerable effect on any claim for care provided by the family about which I heard evidence, not only from her but also from her husband and her son."

17. The finding of exaggeration was in part based on an analysis of film secretly taken of the claimant going about her every day activities. The judge stated that the claimant was "much more mobile than the general accounts of her own mobility would have indicated". The judge gave particulars; he cited Dr Guirguis's conclusion:

"Whether the discrepancy between her level of functional ability (when she is not aware that she is observed) and that claimed in the medical legal context is sufficient to cast significant doubt on the genuineness of her claim is a matter for the court to decide and not for medical or psychiatric opinion."

18. That, with respect, was a fair comment for the doctor to have made. The judge had an opportunity to assess the witnesses, including the claimant herself. Mr Mann was not called to give evidence. Indeed, when he wrote his reports he did not have the advantage of having seen the DVD record. Mr Phillips has sadly died, and it was suggested that may have been a reason why the claimant's consultant orthopaedic surgeon was not called. The DVD evidence could hardly have improved his view of the situation from the claimant's point of view.
19. There was what the judge described as a pre-existing disability, for which the claimant had obtained disability benefit and disability tax credit. While it is not clear precisely what that disability was, evidence of a substantial pre-accident disability emerged from a report, put in evidence, dated 10 September 1997, headed "Incapacity for Work and Medical Report Form" and resulted from the examination at the Norwich Examination Centre. Under the heading "Description of Functional Ability" it is noted that the claimant gets sudden stabs of pain in her left side and falls to the knees; that she cannot lift her left leg over the bath. She does no housework, she avoids stretching. She does not get anything off shelves, having collapsed on one occasion at a supermarket. She never goes out, apart from in the garden. The longest period without pain was one day. That was in 1997.
20. On the claimant's behalf, Mr Grundy submits that the judge has applied the wrong test in considering the situation before him. Secondly, he submits that on an application of the correct test, the finding on balance of probabilities must be in the claimant's favour – alternatively, rather than a finding against her, there should be a remittal for further consideration of the evidence. He relies heavily on the findings, though somewhat damaged by the exaggeration which emerged at a late stage, that the claimant was in substantial and continuing pain in her right hip. He submits that, while a link has not been expressly established by the orthopaedic evidence, on the balance of probabilities, it must be held to exist. The psychiatric evidence, does not itself establish the link, but it eliminates the possibility of other extraneous causes relating to the personality of the claimant. It is not a case where there has been a novus actus interveniens. The failure of all the medical enquiries to throw up an alternative cause of the pain means that probably the pain does result from the events of October 2000.
21. For the defendant, Mr Hogarth of course relies on the inability of any of the doctors, in their very considerable investigations, to establish a link between the physical injury and the chronic pain. He relies too on other aspects of the evidence which, he submits, weigh against the claimant. The judge found that she was a poor historian; that, he submits, is something of an understatement. She had forgotten the important evidence that she had worked for significant periods after the accident, and evidence emerged that there were periods in the first year after the accident when pain was not continuing. Of course, the judge did not take that against her in terms, and this court must bear that in mind. Mr Hogarth relies on the DVD material, which establishes, as the witnesses accepted and the judge found, involved considerable exaggeration by her of the extent of the claimant's disability. Mr Hogarth relies on the pre-existing health and work record, the most significant aspect of that being the 1997 report to which I have referred. The work record was not of the best kind. Most of all he relies on the absence of any link shown by the doctors between the pain and the accident. He submits that it was open to the judge in those circumstances to reach the conclusion he did.
22. The judge was plainly aware of the other factors on which Mr Hogarth relies because he deals with them and deals with them in some detail, but it is difficult to find those points to be decisive when the judge has not, in setting out his conclusions, relied on them. If the judge was influenced in his conclusion by the history to which Mr Hogarth has referred, one would have expected him to say so. Doctors pointed out that credibility was a matter for the judge. He plainly was influenced by the favourable view on credibility which the medical witnesses took. Were the history the only factor on which Mr Hogarth could rely, he would be in difficulty.
23. The point taken on the test is, in particular, in relation to the use by the judge of the word "therefore" in paragraph 60: "There is no physical cause for the pain and therefore it is not related, as far as physical matters are concerned, to the accident on 3 October 2000." If the judge had meant that, because there was no proved physical link, that necessarily the pain could not be attributed to the accident, the test would be a wrong one. It does happen that a judge, confronted with a number of unlikely possibilities, and in the absence of a proved physical link, nevertheless is able legitimately to find for a claimant on the balance of probabilities. I do not consider the judge was, however, using the word "therefore" in that sense. What he was saying, in shorthand form, was that -- having regard to the medical evidence, especially the orthopaedic evidence --he was not, on a balance of probability, able to find the link.
24. As to the subsequent explanations which Mr Grundy extracted from the judge, it appears to me that they put the point rather better -- the word "therefore" does not reappear and the judge's position is accurately set out. It was a position which, in my judgment, he was entitled to take. When he said: "it was in the absence of an identifiable cause" that he reached the conclusion he did, he was applying the same test -- that is whether, on the evidence as a whole, including the lack of an identifiable cause, he was or was not able to find that the chronic pain results from the accident.
25. Mr Grundy has addressed the court forcefully. Cases are always difficult for judges when they are faced with a genuine witness but medical evidence which cannot establish the requisite link: it is sometimes difficult to establish it in other ways. The judge considered the evidence carefully. In my judgment he was entitled to reach the conclusion he did, that, on the balance of probability, the serious symptoms which the claimant unfortunately still experiences are not attributable to the negligence of the defendant. Accordingly, I would dismiss this appeal.

Lord Justice May:

26. I agree that the appeal should be dismissed for the reasons which Pill LJ has given. I gratefully adopt his account of the facts and circumstances of the appeal. The judge found that Ms Thorp's continuing pain, beyond twelve months after the accident, could not, on the balance of probabilities, be attributed to the accident for which the defendant was responsible, as opposed to some other unknown cause for which the defendant might not be responsible (see paragraph 61 of his judgment). The main submission on Ms Thorp's behalf in this appeal is that the judge misinterpreted the orthopaedic evidence, and that this may be seen in a sentence in paragraph 60 of the judgment and a further explanation on page 44 of the transcript, the text of which Pill LJ has referred to. I am not satisfied that this is so. The sentence in paragraph 60 is this:

"However, as Mr Hogarth points out, first of all the orthopaedic experts say that there is no physical cause for this pain and therefore it is not related, so far as physical matters are concerned, to the accident on 3 October 2000."

27. As to the use of the word "therefore" the orthopaedic experts did not say positively that the pain was not related to the accident, but they did say that they could not show that, so far as physical observations went, the pain was related to the accident. I do not think that the judge was saying more than that and I do not, in any event, think that the sentence can be read as saying that the experts had stated positively that the continuing pain did not relate to the accident.
28. The orthopaedic experts' reports proceed on the basis that Ms Thorp herself attributed her pain to the accident. The experts were, no doubt, examining her with a view to determining whether there was a physical explanation which their professional discipline could observe. They were doing this, no doubt, in order to develop a treatment which could relieve Ms Thorp's pain, but also to see whether they could support or refute the proposition that the continuing pain was causatively linked to the accident. They found no observable explanation and, accordingly, were unable within their professional discipline to attribute her continuing pain causatively to the accident. I do not read their reports as asserting positively that the continuing pain was attributable to the accident. I rather think that, in the light of the complete absence of observable orthopaedic cause, it would have been beyond their professional competence as orthopaedic surgeons to assert positively that there was a continuing causative link.
29. Mr Philip Grundy accepted, and I consider, that on this state of the orthopaedic evidence it was for the judge to decide whether he could find, on the evidence as a whole, that Ms Thorp's continuing pain was caused by the accident. It was perhaps open to him to do so, by drawing a general inference from the evidence as a whole, but in my judgment the judge's finding that the necessary causal link had not been established is not impugned by the matters relied on in this court. It was, I think, entirely open to the judge to reach this conclusion on the evidence, which was capable of being seen as consonant on the evidence with general probability.
30. It was a generally tenable view that this was a low velocity accident which, in the light of the orthopaedic evidence, probably caused soft tissue injury only. Soft tissue injury alone usually repairs itself within a relatively short period or, if not, there will be clinically observable signs, which were absent in this case. There was also evidence from which the judge could conclude that Ms Thorp was not in significant pain between the later part of November 2000 and early April 2001. A physiotherapist wrote that her condition was 100% resolved. Her subsequent symptoms are not attributable to any observable orthopaedic cause or to any psychiatric cause. More specifically, it is a kind of injury which, in all the circumstances, an accident such as this might cause.
31. Ms Thorp was shown to have suffered left-sided pelvic pain before the accident in 1997 and a medical report form resulting from an examination on 10 September 1997 recorded her then description of her typical day in terms generally similar to her description in her witness statement of her current daily condition, which she attributed, in that statement, to her accident. The DVD evidence was generally not helpful to her case, and we are told that this has not featured as part of the material on which the orthopaedic evidence before the court was based. The joint report of the orthopaedic experts was capable of sustaining the judge's finding that pain caused by the accident extended for a maximum of a year; it did not positively sustain causation for a longer period.
32. So far as Mr Grundy may have submitted that the judge's finding was so against the weight of the evidence that this court should intervene, for the reasons I have already given I do not think so. As I say, I agree that this appeal should be dismissed.

Lord Justice Pumfrey:

33. I agree with both judgments and have nothing to add.

Order: Appeal dismissed