England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
HIS HONOUR JUDGE HORTON
2YJ84981

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th July 2015

Lord Justice Vos:

1. This is a purely factual appeal from the judgment of His Honour Judge Mark V Horton delivered on 13^th June 2014. He found that the appellant, the Ministry of Defence (the "MoD"), had breached its duty of care to the respondent, then Acting Corporal Lillington (the "respondent"). A Sergeant Claridge had ordered the respondent to carry his Bergen rucksack, weighing some 75-80lbs, on a 3 kilometre insertion march along the line of a disused railway. This took place on 22^nd June 2009, which was the first day of the week-long field-craft module of the pre-command stage of a modified Junior Command Course (the "JCC"), run for those wishing to achieve a permanent non-commissioned officer rank of, in this case, Corporal. The judge found that Sergeant Claridge ought not to have ordered the respondent to carry his Bergen or indeed have allowed him to do so, because of his medical restriction occasioned by Compartment Syndrome which caused cramps in the legs and swelling of the calf muscles. By the time of the JCC in June 2009 (the "2009 JCC"), the respondent's incapacity prevented him undertaking basic fitness tests and running. The judge also found that the respondent ought not to have been permitted to participate in the insertion march at more than a walk, because he found it to be "part walk and part run", so that it was in contradiction of his medical restriction.
2. The judge accepted the respondent's evidence that he had fallen three times during the insertion march due to fatigue in his legs, arriving 5 minutes after the other participants. He found that the respondent then tried to participate in the ensuing night navigation exercise but was required to pull out due to his medical condition. The next day, the respondent was removed from the 2009 JCC. There is no appeal by the MoD from the findings of negligence against it, nor from the award of £3,750 by way of general damages plus interest.
3. The judge also, however, awarded the respondent an additional £62,559 inclusive of £148 in respect of interest for loss of pay and pension as a result of his not having passed the 2009 JCC and not becoming a permanent Corporal. The judge found on a balance of probabilities that if the respondent had been properly protected on the 2009 JCC by the MoD in accordance with his medical conditions, he would have passed it and obtained confirmation of his corporal rank. It is this finding that the MoD challenges on this appeal. It does so, on two primary grounds. The first is that the judge wrongly placed reliance on the fact that another participant, Corporal Anna Belinda Hardy, had failed the JCC in May 2008 (the "2008 JCC"), but passed it in 2009, when in fact her evidence had been that she had failed the 2008 JCC because she was "not ready" rather than because of any reason connected with her medical condition. The second is that the judge wrongly thought that the 2008 JCC was a full, rather than a modified, JCC. This error led him to reason wrongly that the respondent had carried the full Bergen on the 2008 JCC, and that, if the medical restrictions had been complied with on the 2009 JCC, the respondent would have passed. I shall return to these two central criticisms of the judge's judgment in due course.

Preliminary matters

4. At the beginning of the argument, Moore-Bick LJ asked Mr Yaqub Rahman, counsel for the MoD, whether the judge ought, instead of considering the matter on an "all or nothing" basis, to have considered awarding damages for the loss of the chance that the respondent would have passed the 2009 JCC and been promoted to Corporal. Mr Rahman dismissed this suggestion with great certainty and was supported in his approach by Mr Christopher Barnes, counsel for the respondent. They relied on the House of Lords' majority decision in Gregg v. Scott [2005] 2 AC 176, where a patient had recovered no damages for the negligent delayed diagnosis of his cancer, because the delay had only reduced his survival chances from 42% to 25%, so he had not been able to show on a balance of probability that he would have been cured but for the negligence. That was a case where liability for medical negligence was in issue and in order to establish a cause of action the claimant had to prove (on a balance of probabilities) that he had in fact suffered harm as a result of the defendant's negligence. It was not a case relating to the assessment of financial loss flowing from that harm which depended on the court's view of whether or not a future event would have occurred. As it seems to me, there would have been grounds for thinking, in this case, that the judge ought to have awarded damages for loss of a chance (see Lord Diplock at page 176 in Mallett v. McMonagle [1970] AC 166, Lord Reid at page 213 in Davies v. Taylor [1972] 3 All ER 836; Langford v. Hebran [2001] EWCA Civ 361, and Brown v. MOD [2006] EWCA Civ 546). Since neither party asked us to consider this question, we can only proceed on the agreed basis, namely that the judge asked himself the correct question when determining whether special damages should be awarded for the loss of the respondent's promotion to Corporal. I should not, however, be taken as accepting that the parties' agreed approach was correct in law.
5. There was also no dispute between the parties as to the correct approach of this court to a factual appeal of this kind. The parties referred to the well-known judgment of Clarke LJ (with whom Sir Christopher Staughton agreed, and Ward LJ largely agreed) in Assicurazione Generali SpA v. Arab Insurance Group [2003] 1 WLR 577, citing Mance LJ in Todd v. Adams & Chope [2002] 2 Lloyd's Rep 293 at paragraph 129). In essence, where a primary finding of fact or an inference from such a primary finding is challenged, and where the appellant has shown a real prospect that the judge was wrong, the role of the appellate court is to determine whether that is so, giving full weight to the advantages enjoyed by a trial judge who has heard the oral evidence. Where, however, the challenge is to the judge's evaluation of the facts, the court will treat the matter in an analogous fashion to a challenge to the judge's exercise of a discretion, so that the appellate court will only interfere if the judge has not merely preferred one of two imperfect solutions, but has exceeded the generous ambit within which reasonable disagreement is possible (see also the note in the CPR at paragraph 52.11.4 and the cases there cited).
6. In this case, the MoD has challenged some findings of primary fact or at least an inference from findings of primary fact, such as that the respondent was required to take part in the insertion march on the 2008 JCC carrying a fully-loaded Bergen. The major challenge was, however, to the judge's evaluation of the facts that led him to the conclusion that it was more likely than not that the respondent would have passed the 2009 JCC had he not been forced to carry the fully loaded Bergen and to run on the insertion march.
7. Before considering the appellant's contentions in detail, it is useful to consider precisely how the judge reached those of his conclusions that are under challenge.

The judge's judgment

8. I do not intend to recite the full details of the judge's decision on liability. It is, however, important to understand that the judge rejected the evidence of the MoD's witnesses, Sergeants Claridge and Smith. He rejected as "totally unbelievable" the evidence of Sergeant Claridge to the effect that he had given three orders to the respondent not to carry his Bergen rucksack. Both Sergeants Claridge and Smith made "a rather clumsy attempt to put their actions in a better light". They had not taken the respondent's Bergen away from him after 500 metres of the insertion march – or at all.
9. Mr Rahman placed special reliance on paragraph 26 of the judge's judgment where he described Corporal Hardy's evidence as follows: "[s]he had failed the course in 2008. She was on a medical restriction both then and at the 2009 course although her medical restriction was slightly different to the claimant's. The fact that she had failed on one occasion but succeeded on the latter as will become clear in my judgment, is significant and important evidence".
10. The question posed by the judge in terms of the special damages claimed was: "would the claimant have passed this course and become a Corporal … as from 31 March 2010 … if properly protected in accordance with his medical certification". He recorded the MoD's submission to the effect that the past was the best predictor of the future, and therefore that the fact that the respondent failed the 2008 course showed that he would not have passed the 2009 course even if he had been properly protected in accordance with his medical certification. He recorded also the MoD's submission that there was no evidence that the respondent's medical condition improved between 2008 and 2009, save his own evidence that his condition got better to such an extent that he felt able and willing to undertake and pass the modified JCC.
11. The judge then reminded himself of Surgeon Captain Dean's report from which insight was to be gained as to the reasons why the respondent had failed the 2008 course, saying that: "[i]n 2008 the Royal Marine Band Service personal fitness test was introduced and the JCC(MD) was stopped in favour of a full JCC for all Royal Marine Band personnel [including the respondent]. This presented difficulties for [the respondent] … and … he developed an exacerbation of severe calf pain after completing a full day of rough terrain walking followed by a five hour night exercise and had to be removed from the course". The judge said that it was clear to him from that extract that "in 2008 the claimant was not allowed modifications for his medical restrictions and that would have meant … that he would have had to take part in the insertion march with full kit including the Bergen". The judge then said that "[a]s the claimant says and is recorded in his witness statement at page 90 paragraph 11 and I accept, he underwent the full test in 2008 without allowance for medical restriction".
12. I interpose to recite paragraph 11 of the respondent's statement as follows: "[i]n around June 2008, I was sent on a First Command Promotional Course at HMS Nelson, Hampshire. The course instructors were provided with a full and comprehensive listing of my medical limitations. Regardless of my medical downgrading I was sent on an all day timed navigation exercise which involved lots of uphill walking and running across rough terrain and over undulating ground whilst carrying at least 25lbs worth of kit and weaponry, this was a timed exercise which carried a Pass/Fail mark".
13. The judge's conclusion was stated immediately following the reference to this paragraph: "Thus, I find that the fact that he failed the 2008 course does not automatically mean that he would have failed the 2009 course". He then says that: "[i]ndeed I note as I have referred to earlier that Corporal Hardy who failed the 2008 course who herself had medical restrictions in fact passed on the 2009 course. If I adopted the [MoD's] logic she should also have failed". The judge then goes on to accept the respondent's case that "as his medical classification remained and was not changed after 2008 and showed him as fit to attend the next course in 2009 it would be wrong of me to go behind that medical classification and indeed would be … speculation on my part".
14. The judge then reasoned that the MoD could have put the respondent to a medical board prior to the 2009 course but did not do so. He accepted the respondent's view that his statement on 21^st May 2010 for the medical board did not demonstrate that he was removed from the 2009 course for the same reasons as from the 2008 course, but that the respondent was simply giving a layman's account of his symptoms not the cause.
15. It is worth interposing here the passage from the respondent's statement of 21^st May 2010 on which the judge relied as follows:-

"Whilst on [JCC] in May 2008 I once again experienced [severe] cramps with exceptional calf swellings after completing a 6 km Speed March across rough terrain into camp then a 8 km [day navigation exercise] followed by the same [navigation exercise] in reverse but at night with full CEFO [Combat Equipment Fighting Order], Weapon and Patrol Pack. I was withdrawn from the course by Dr Randall on 19/05/2008 …

Whilst attempting my [JCC] again in June 2009 I once again was Medically removed from the course due to the exact same problems and symptoms I had the previous year … For the last 2 years the Band Service has run the Modified [JCC] as the same as a Royal Marine [JCC]".

16. The judge then summarised his reasons for finding that it was more probable than not that the respondent would have passed the 2009 JCC had his medical conditions been respected:-

i) The positive appraisals that the respondent was given prior to the 2009 JCC;

ii) The fact that others who had failed previously succeeded in 2009;

iii) The fact that only one of the 25 people on the course dropped out and he was also forced to wear his Bergen possibly in breach of his medical classification;

iv) In particular, the importance to the respondent of passing the course, and the fact that his determination to do so would be extremely high.

17. Mr Rahman, acting for the MoD, drew the judge's attention after judgment to three alleged factual errors of which the following two are still relied upon as follows:-

i) That Corporal Hardy said that she had failed the 2008 JCC, not on a physical basis, but because she was not ready; and

ii) That the judge had been wrong to find that the respondent had done the full unmodified JCC carrying the Bergen in 2008, because there was no evidence to that effect, and the respondent's statement of 21^st May 2010 (see above) showed that he failed the 2008 JCC carrying a "patrol pack" (of 50-60lbs) which is what he would have to have carried in any event. The evidence showed that the respondent had done the same modified JCC in 2008 as in 2009.

18. Mr Rahman also pointed to the fact that the respondent had gone into the 2009 JCC with the additional restriction of "no running", so his medical condition could not have improved.
19. After further argument, the judge ruled that his error in relation to Corporal Hardy did not alter his conclusion; his point was that people do pass, having earlier failed. The judge said he had nothing further to add as regards the nature of the 2008 JCC. Finally, the judge placed further reliance on the fact that the respondent had attended sick bay before the 2009 JCC and received a chit allowing him to attend the course in accordance with his existing classification, save for the "no running" amendment.

Evidence relied upon by the MoD

20. In the course of the oral argument before us, much reliance was placed on a number of documents and some pieces of oral evidence that were before the judge. It is useful to examine briefly their contents before considering the MoD's substantive grounds of appeal.
21. The first and most important document was one headed "Guidance Notes for Medical Officers, Company Commanders and Heads of Department when considering fitness for command training". The document explained that command training courses are not specifically designed to be a test of physical prowess, but they contain "many training serials" that are both mentally challenging and physically demanding and "afford little time for recovery". There is then this statement: "[r]anks nominated for command training must be physically robust and they must not be allowed to commence training with an injury or illness that is likely to preclude them from successfully completing the course". There are then 5 required activities listed: (a) the RM Band Personal Fitness Test, (b) the 4-mile speed march and run, (c) high impact physical activities, (d) operating by day and night in arduous field conditions for up to 7 days at a time carrying loads (patrol order) of up to 40-50lbs, often in inclement weather and under conditions of fatigue and stress, and (e) night navigation exercises up to 11km across rough ground, at night, with rifle and approx 21lbs at 3km per hour. The document then makes clear that activities (c) to (e) above "which relate to medical downgrades are critical requirements regardless of medical category for JCC". Annex C dated 26^th March 2009 gave rule of thumb definitions for load carrying as follows: CEFO: 20-30lbs of equipment and rifle weighing 11lbs; Patrol Order: as for CEFO but including day sac with total weight to 50-60lbs and rifle; and Marching Order: as for Patrol Order but including full Bergen with a total weight of 75lbs plus and rifle.
22. The MoD also relied on Dr Randall's medical notes of 19^th May 2008 (after the 2008 JCC) recording that she believed that the intensity of the JCC, even with the limitation of not running and the modifications for downgraded candidates "are not compatible with [the respondent's] physical condition which is likely to continue to exacerbate if he continues". It was, however, the same Dr Randall who certified him fit to undertake the JCC on 20^th May 2009 on condition that there was "no running".
23. Finally, the MoD relied on the respondent's re-examination in which he said that he made no complaint about what was required of him on the 2008 JCC. Mr Rahman sought to interpret that evidence as meaning that he had not been required to do anything on the 2008 JCC in breach of his medical certification and in particular to carry the fully loaded Bergen on the insertion march.

Discussion

24. On the first main ground, it is true that the judge had originally misunderstood the reason why Corporal Hardy had failed the 2008 JCC. But that error was, quite properly, pointed out to the judge, who made it clear that his misunderstanding did not affect the conclusion on his evaluation of the evidence. In these circumstances, it is hard to see how the point can be regarded as invalidating the judge's reasoning. It is true also that the judge had said at paragraph 26 of his judgment that he regarded Corporal Hardy's failure on one occasion and success on a later occasion as significant and important evidence, but that passage did not say that he regarded the reason for the early failure as crucial. The reality was that the judge thought that Corporal Hardy's experience simply demonstrated that privates could make the grade having failed the first time round. That was perhaps obvious, but needs to be seen also in the context of the evidence that the judge heard to the effect that the MoD actually wants those participating in the JCCs to pass, and that most do pass. The JCC, whilst a long and arduous course, is the culmination of the promotion process, and only those thought otherwise suitable for promotion have the opportunity to attend. Corporal Hardy was, in my view, an important example, because although she was medically downgraded so that she could neither run nor carry heavy loads, her restrictions were respected and she passed the course. It appears that she must have made the insertion march at walking pace without a Bergen.
25. Ultimately, however, Mr Rahman's main point relates to the judge's supposed misunderstanding about the 2008 JCC. He says that this wholly invalidates his reasoning because he thought that the respondent had carried the fully loaded Bergen on the insertion march in 2008, when he had not. I am afraid that I cannot accept Mr Rahman's basic premise. Of course he may be right, but the evidence on this point was worse than exiguous. One can easily see how the judge thought that the 2008 JCC had been unmodified, even for medically downgraded candidates. That was his quite reasonable interpretation of Surgeon Captain Dean's report saying that: "[i]n 2008 the Royal Marine Band Service personal fitness test was introduced and the JCC(MD) was stopped in favour of a full JCC for all Royal Marine Band personnel [including the respondent]". I accept, of course, that other evidence pointed away from this interpretation: the fact that the respondent did not maintain a complaint in evidence about what he had been asked to do in 2008, and the fact that the respondent had himself said on 21^st May 2010 that "[f]or the last 2 years the Band Service has run the Modified [JCC] as the same as a Royal Marine [JCC]". That statement is a little ambiguous, but it could mean what Mr Rahman submits it does, namely that the 2008 JCC was the same modified course as the 2009 JCC.
26. In my judgment, however, the fact that the judge was faced with conflicting evidence does not mean that he was required to accept one or other piece of the jigsaw or draw a particular inference. He was best placed to decide what had happened. The MoD could easily have adduced evidence as to the activities undertaken on the 2008 JCC, but it did not. In that state of affairs, the judge had to do the best he could.
27. In these circumstances, I do not think that the inference from the primary facts found by the judge to the effect that the respondent was required to carry the Bergen on the 2008 insertion march can properly be challenged. It was a finding open to him and much respect must be paid to the fact that he heard the evidence and reached that conclusion. But even if he was wrong, I do not think that the error is enough to invalidate his evaluation of the evidence that led him to conclude that, had the respondent not been required to carry the Bergen and to run on the insertion march, he would have passed the 2009 JCC.
28. First, it is clear that the respondent was required to run in 2008, but ought not to have been required to do so in 2009. Secondly, the judge was far better placed than we are to evaluate the physical effect on the respondent of the MoD's breaches of duty in forcing him to carry the Bergen and to run on the insertion march in 2009. We might reasonably think that the arduous nature of the exercises planned for the full field-craft week would have been likely to have an adverse effect on the respondent's legs with or without the carrying and running on the first day. But we would not, I think, be justified in reaching that conclusion when the judge thought that various important factors pointed towards his otherwise being able to pass the 2009 JCC: he relied on the fact that Corporal Hardy passed, that the respondent had been passed fit to undertake the course, that only one other person failed out of 25 candidates, and that the respondent was highly motivated. In truth the comparison with the 2008 JCC was a minor matter bearing in mind that the evidence of what was actually done in 2008 was extremely thin, and Dr Randall, despite her reservations about the respondent's future fitness after the 2008 JCC, passed the respondent fit to undertake the 2009 JCC. I also take into account the guidance notes that are in mandatory terms as follows: "[r]anks nominated for command training must be physically robust and they must not be allowed to commence training with an injury or illness that is likely to preclude them from successfully completing the course" (emphasis added). Dr Randall had to consider these notes before passing the respondent fit to undertake the 2009 JCC.
29. All in all, it seems to me that the MoD's challenge to the judge's finding cannot succeed. For the reasons I have given, I do not think we should interfere with the judge's inference from his findings of primary fact to the effect that the respondent had to carry the Bergen on the 2008 JCC. But even if that finding were wrong, and this court could, therefore, review the judge's evaluation of the evidence about whether the respondent would have passed the 2009 JCC, I think that the other matters that the judge took into account were sufficient to justify the conclusion that he reached, having considered all the oral and written evidence at the trial.

Conclusion

30. For the reasons I have given, I would reject the MoD's challenges to the judge's factual finding that the claimant would have passed the 2009 JCC and become a Corporal as from 31 March 2010 if the MoD had properly protected him on the insertion march in accordance with his medical certification. I would, therefore, dismiss this appeal.

Lord Justice Treacy:

31. I agree.

Lord Justice Moore-Bick:

32. I also agree.