COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT DISTRICT REGISTRY AT MIDDLESBROUGH
HIS HONOUR JUDGE TAYLOR
(sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
DAME JANET SMITH
| Ministry of Defence
|- and -
Mr Andrew Hogarth QC & Mr Jeremy Freedman (instructed by Thompsons Solicitors) for the Respondent
Hearing date: 28 March 2011
Crown Copyright ©
Dame Janet Smith:
First issue – whether or not the claimant was suffering from an organic condition
The medical conditions under discussion
History of development and diagnosis of the claimant's condition
The pleading of the medical issues
The medical evidence called at trial.
"A number of toxic agents can produce progressive cerebellar dysfunction, including pharmaceutical products, solvents and heavy metals."
Later in that article, Professor Wood had said:
"recreational or accidental exposure to a number of solvents, including carbon tetrachloride and toluene causes cerebellar ataxia along with other neurological problems, including psychosis, cognitive impairment and pyramidal signs in the case of toluene. The neurological deficit is potentially reversible, but may persist after prolonged exposure in solvent abusers."
The judge observed that Professor Wood was conceding that solvents do have a known toxic effect and also remarked that he did not think that the Professor would ever have come across a case where there had been such a concentration of solvent exposure as there had been in this case.
"Organic solvents are known neurotoxic agents with both acute effects in terms of causing drunkenness, nausea and unconsciousness and chronic effects associated with neuropsychological impairment. In the Nordic countries, this syndrome is known as Painters' Disease or Chronic Solvent Neurotoxicity."
I note that Professor Seaton did not quote any authority for this general proposition. However, only one aspect of the proposition is controversial, namely whether there can be chronic effects as well as temporary ones.
"As I say, my approach to this must be the balance of probabilities, more likely than not. I do not need scientific proof. Not every case that comes before the Court can have scientific proof. I am allowed it seems to me to have regard to the chronic nature of the exposure to the substances concerned, to the dangers that they pose and the period over which it went on, the fact that there was no protection to mitigate the exposure in any way, shape or form. I give some regard to the fact that three very young men seem to suffer similar type of symptoms from similar exposure over a short period of time. I pay regard to the analogous situations of the glue sniffers, who can suffer irreversible brain damage as a result of sniffing solvents, of the long and well-known toxic effects that they have, even if there is not a widely published view about a scientific link. On balance, I am satisfied that causation is made out in this case."
"This was a case where people were using that substance in machine tool making. The dosage occupational exposure limit is not demonstrated in any detail. It does not appear that the amount was anywhere likely to be the same as there was in this case but there did appear to be in 3 out of 30 cases some Parkinsonian symptoms."
It must be accepted that the judge had not understood that paper. In fact, there were 3 cases out of 30 with PD and other cases within the exposed group with Parkinsonian symptoms. In effect, the judge had understated the probative value of this study to the claimant's case.
"My clinical and epidemiological experience has convinced me that brain damage of this type occurs in individuals exposed to such concentrations which are far higher than the highest ones recorded amongst the 4,000 participants in the Geoparkinson study "
The judge then commented:
"While I accept the exposure was far higher, but to a certain extent the third point does tend to be near to his alleged Evangelism than it does to a real identification here."
Mr Johnson's point was that, far from accepting Professor Seaton's reasons, the judge was criticising the professor for being evangelistic, the very criticism which the MOD had levelled against him.
Lady Justice Black:
Lord Justice Moore-Bick: