England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LUTON COUNTY COURT
Her Honour Judge Corbett
Case No: 7B100281

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 March 2013

Lord Justice Moore-Bick :

1. This is an appeal from the order of Her Honour Judge Corbett giving judgment for the respondent, Mr. Michael Goodman, on his claim against the appellant, Faber Prest Steel, for damages for personal injury sustained in a road traffic accident on 26^th February 2004. The appellant admitted liability, subject to a discount of one third for contributory negligence, and the matter therefore came before the judge for the assessment of damages. Mr. Goodman said that as a result of the accident he suffered from pain in both his knees, his lower back and his neck, particularly when driving. It was the appellant's case that apart from the immediate shock and discomfort caused by the accident Mr. Goodman had suffered no, or no significant, injury as a result. His symptoms were constitutional in nature. The judge accepted Mr. Goodman's case and awarded him damages in the sum of £69,478.
2. At the time of the accident the respondent was employed by Procter & Gamble as a medical sales representative, which inevitably made it necessary for him to spend many hours on the road. He was provided by the company with a car which he used for the purposes of his employment. At the time of the accident he was driving a Volvo S40 with a manual gearbox. At about 10:20 a.m. on the day in question he was waiting at a set of traffic lights on the A505 Dunstable Road in Luton. There were two lanes at the lights; Mr. Goodman's car was in the nearside lane and a lorry owned by the appellant and driven by one of its employees was in the offside lane. The two vehicles were side by side. As the lights changed and both moved off the lorry veered into the nearside lane. Mr. Goodman applied his footbrake and clutch in an emergency stop, but he could not prevent the lorry from colliding with his car, forcing it off the road and on to the pavement. The front wheel and the bodywork along the whole of the offside of the car were damaged and it was rendered incapable of being driven, but there was no damage to the interior of the vehicle and the airbags were not activated. Mr. Goodman arranged for the car to be collected and in due course it was repaired. In the meantime his employers provided him with a replacement vehicle and he was able to continue working for about three weeks until he got married and went on honeymoon.
3. In January 2007 Mr. Goodman brought these proceedings against the appellant alleging that as a result of the collision he had sustained injury to his cervical spine, injury to his thoraco-lumbar spine, injury to both knees and post traumatic stress disorder. In support of his claim he relied on the evidence of Mr. Richard Coombs, a consultant orthopaedic and spinal surgeon. The appellant relied on the evidence of Mr. Robert Hay, a consultant orthopaedic surgeon who had extensive experience of spinal injuries. The judge found that Mr. Goodman had received a severe lateral jolt and that the injuries of which he complained had been sustained in the accident.
4. As can be seen, this case turned entirely on the judge's assessment of the evidence and her findings of fact based upon it, which were made after seeing and hearing the witnesses give their evidence. She found Mr. Goodman to be an entirely credible witness whose account she had no hesitation in accepting. In those circumstances the appellant was faced with an uphill task in seeking to persuade the court that she was wrong, but it sought to do so by relying on Mr. Goodman's medical history before and after the accident and on a statement he made in an email sent to his employer in May 2006 that he had suffered no pain during the month or so after the accident while he was waiting for his own car to be repaired. It will be necessary to return to that email and to the reason why it is important at a later stage.
5. We had the benefit of seeing Mr. Goodman's medical records, as indeed did both medical experts. In late November 2003 and again on 24^th February 2004 he consulted his General Practitioner complaining of heartburn. The accident occurred two days later on 26^th February 2004, but he did not see the doctor again until 14^th April when he was once more concerned about heartburn. On 6^th May 2004 Mr. Goodman went to see the occupational health department at his place of work. He said that he was having difficulty with his current car due to an injury to his left knee following the accident three months earlier. He also complained of backache resulting from the driving position of the car he was then using. That seems to have been the first occasion on which he raised the matter at work. On 13^th May he saw his doctor again to have some sutures removed from a wound to his right calf, but that appears to have had nothing to do with the accident. He did not complain to the doctor about pain in his knees or back until 20^th May 2004, when he reported pain in his left knee, mainly when driving, which he attributed to the accident. The doctor found nothing of note but arranged for him to see a physiotherapist. At that stage the complaint appears to have been confined to his left knee.
6. Mr. Goodman visited the doctor again on 1^st June for an unrelated complaint. On that occasion he did not refer to pains in his knees or back. On 22^nd July Mr. Goodman visited the doctor again, complaining for the first time of low back pain on the left side. His left knee was also noted to be tender. He was referred to a consultant orthopaedic surgeon a few days later, but there is no record of any examination before 8^th February 2005 when he was seen by Mr. Nikos Reissis. An MRI scan was carried out on 1^st March 2005 which disclosed some potentially significant changes in the lumbar spine.
7. Although Mr. Goodman visited his GP on two further occasions during the autumn of 2004, it was not until 22^nd November 2004 that he consulted the doctor about pain in his leg. According to the doctor's notes, on that occasion he referred to the accident in the previous February said that he had been all right for the first 6 weeks following it with no significant injuries. During that period he had been driving an automatic car, but when he went back to his old (manual) car he started to experience pain in his left leg when driving. He said that for the past four weeks he had had numbness and a light feeling on the outer side of his left leg.
8. Following his examination of Mr. Goodman on 8^th February 2005 Mr. Reissis sent a report to his GP in which he described Mr. Goodman as presenting with "a two-month history of pain and stiffness in his neck with no history of an injury". That is the first reference in the medical records to neck pain. He diagnosed mechanical/discogenic back pain with irritation of the right brachial plexus and in another letter referring to an examination conducted a week later on 15^th February 2005 the diagnosis was mechanical/discogenic low back pain and left-sided sciatica. Finally, there is a report from Mr. Reissis of an examination of Mr. Goodman on 6^th November 2005. In that report he referred to an eight-month history of progressive pain and increasing stiffness and significant swelling in both knees. He diagnosed early signs of degenerative changes in the patello-femoral joints and tears of the medial meniscus.
9. Mr. Goodman was examined by another consultant orthopaedic surgeon, Mr. Michael Sullivan, in April 2006. He noted that Mr. Goodman had not had any real injury after the accident but had later started getting knee and back pain. He formed the view that Mr. Goodman was beginning to suffer from a litigious chronic back syndrome, a view with which Mr. Hay later agreed.
10. In August 2006 Mr. Goodman was referred by his employer to Professor Mark Porter of Loughborough University for an ergonomic assessment designed to assess his suitability for the car he was then driving and other comparable models. He told Prof. Porter that he had first experienced driving-related pain in May 2004. He referred to the accident in February that year, but said that he had not suffered any immediate problems before he returned to work in May following his honeymoon. In December 2006 an MRI scan was carried out on his knees; it disclosed no obvious tears in the cartilage.
11. Mr. Coombs examined Mr. Goodman on five occasions between February 2006 and July 2010 and produced several reports. He had access to the GP notes and to the MRI scan carried out on 1^st March 2005. The description of the accident given in Mr. Coombs' reports is potentially misleading: it refers to its having occurred at a roundabout, which might suggest that the impact occurred at something nearer a right angle than was in fact the case. He expressed the opinion that Mr. Goodman's symptoms were attributable to the accident. At one stage Mr. Coombs suggested that Mr. Goodman's problems with his knees might be due to a condition known as chondromalacia patellae, but an examination carried out at the time of an arthroscopic partial meniscectomy on his right knee in November 2007 showed the joint to be in very good condition.
12. Mr. Hay examined Mr. Goodman once only on 11^th July 2008. He had the GP notes and also had copies of the reports that had been prepared by Mr. Coombs, but he did not have sight of any of the MRI scans. His description of the accident itself accurately reflects that given by Mr. Goodman, although it appears from the joint expert memorandum that he wrongly understood that the car remained capable of being driven. He was of the clear view that Mr. Goodman's symptoms were not attributable to the accident, partly because there was no record of his having suffered any symptoms in the period immediately after it had occurred. It was his opinion that the effects of injuries such as fractures or strains are most noticeable immediately after the event and that the delayed onset of Mr. Goodman's symptoms was due to a constitutional tendency to develop symptoms of that kind.
13. Although Mr. Coombs and Mr. Hay differed in their opinions, there was one matter on which they were agreed, namely, that if Mr. Goodman had sustained any significant injury to his knees, back or neck in the accident he would almost certainly have suffered painful symptoms in the days immediately following. That became an important, if not a critical, question and it is for that reason that the GP's notes and Mr. Goodman's email are of importance. Despite his assertion that he was taking painkillers during the weeks immediately following the accident, Mr. Goodman was clearly not averse to consulting his GP and did so when the symptoms made that appropriate. However, it was not until the beginning of May 2004 that he complained to anyone about pain in his left knee and it was not until the end of July that he complained of lower back pain. He did not complain about pain and stiffness in his neck until he was examined by Mr. Reissis in February 2005. The history of his symptoms is consistent both with the letter his GP wrote to the consultant in November 2004 ("he thought he had got away with no injury but found after six weeks driving a hired automatic car that when he returned to his manual car he had problems with his left leg . . . ") and with what Mr. Goodman himself said in his email of 8^th May 2006, to which I now turn.
14. The email was sent to his line manager. Although it is ostensibly intended to summarise the current state of his health, much of it is taken up with describing his experience of the various different cars that he had been driving during the previous two years. He stated in terms that after the accident he had used a Volvo S60 (an automatic model) for over a month and that while driving that car he had not noticed any pain. That, of course, was consistent with the medical records to which I have referred. It also tended to reinforce Mr. Hay's conclusion that Mr. Goodman had not sustained any significant injury as a result of the accident.
15. In the course of his cross-examination Mr. Goodman was reminded of his medical history and was shown the email of 8^th May 2006 which, as counsel pointed out to him, is consistent with it. He was asked to explain why he had said in terms that he had not noticed any pain for over a month while he was driving the Volvo while his own car was off the road. He insisted that what he had said in the email was not true and that he had suffered pain in his knees and back immediately after the accident, but he could not explain why he had said that he had not. All he could do was to suggest that he had been trying to persuade his employer to provide him with a different car. Later in his cross-examination he was asked to explain the account of the development of his symptoms he had given to Prof. Porter. He agreed that he had not suffered any pain relating to driving until May 2004.
16. The judge found in favour of Mr. Goodman for two principal reasons: first, because she accepted his evidence that he had suffered painful symptoms in his knees and back immediately after the accident; second, because she preferred the opinion of Mr. Coombs to the effect that Mr. Goodman's symptoms could be attributed to the accident to that of Mr. Hay. Mr. Gash criticised Mr. Coombs' evidence on a number of grounds, but it is unnecessary to refer to them in any detail because Mr. Coombs accepted in cross-examination that in order for the claim to succeed the judge had to be satisfied that Mr. Goodman began to experience painful symptoms immediately or shortly after the accident. Indeed, the judge expressly noted that part of his evidence in paragraph 18 of her judgment. In the event she did accept Mr. Goodman's evidence to that effect; the only question is whether she was entitled to do so.
17. The only evidence that Mr. Goodman had experienced pain in his knees and his back immediately after the accident came from him. Although much emphasis is quite properly placed on the advantage given to the trial judge of seeing and hearing a witness give evidence, it is generally acknowledged that it is difficult even for experienced judges to decide by reference to the witness's demeanour whether his evidence is reliable. Memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken. That is why in such cases the court looks to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth. In Armagas Ltd v Mundogas S.A. [1985] 1 Lloyd's Rep.1, at page 57 col. 1. Lord Goff described his own experience as follows:

"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."

Although Lord Goff was there referring to cases involving fraud, his remarks hold good for any case in which a witness's credibility is a central feature.

18. In the present case the judge was well aware of Mr. Goodman's medical history, which she summarised in paragraph [14] of her judgment, and of the email of 8^th May 2006 to which she referred in paragraph [35], but she appears to have accepted Mr. Goodman's assertion that he had experienced knee and back pain immediately following the accident without testing it against the medical records and other documents (including the email) which tended to contradict it. She appears to have placed some reliance on the fact that Mr. Goodman obtained an automatic car as a replacement immediately following the accident, but, given that he must have been shaken up by what had happened, that may not take the matter very far. One is left with the clear impression that she was swayed by Mr. Goodman's performance in the witness box into disregarding the important documentary evidence bearing on what had become the central question in the case. It may have been open to her to prefer what he had said in the witness box, but if she was minded to do so it was incumbent on her to deal with the documentary evidence and explain why Mr. Goodman's oral evidence was to be preferred.
19. In those circumstances I do not think that the judge's decision can be allowed to stand. However, it would not in my view be appropriate for this court to substitute a conclusion of its own without having heard Mr. Goodman give evidence. In those circumstances I would allow the appeal, set aside the judge's order and remit the matter for re-hearing before a different judge.

Lord Justice Rimer :

20. I agree.

President of the Queen's Bench Division :

21. I also agree.