England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/11/2008

His Honour Judge Richard Seymour Q.C. :

Introduction

1. The claimant, Miss Martine Widlake, was born on 21 April 1975. She has been employed by the defendant, BAA Plc ("BAA"), since 22 March 2002 at Stansted Airport in Essex. In the first instance she was employed as a security guard. Her duties in that capacity involved, in addition to such tasks as manning the point at which passengers were required to pass through a metal detector and submit hand luggage for inspection before being admitted into a departure lounge, undertaking foot patrols to make sure that all areas of the airport which needed to be secure were secure.
2. On 12 July 2004 Miss Widlake was undertaking a foot patrol in the Baggage Reclaim Area of the airport. In that area Stairwell 5 leads to an emergency exit, which in ordinary circumstances should be maintained shut. As Miss Widlake began to descend Stairwell 5 by a staircase she lost her footing and fell twelve or thirteen steps down the staircase. It was common ground that what caused Miss Widlake to lose her footing was a loose riser immediately below the top step.
3. As a result of missing her footing and falling Miss Widlake sustained bruising to the right and left side of the back thoracic region, bruising on the right elbow, bruises to the right gluteal area, a bruise to the right antero-lateral thigh and bruises to both knees. The bruising to the arms settled within about a week of the accident. The bruising to the shin and ankles caused some discomfort on walking for about a week after the accident, but resolved uneventfully. The right thigh was "black and blue" for about six weeks after the accident and discomfort in that area, sufficient to limit her walking and to disturb her sleep, persisted for about two months. Miss Widlake was unable to drive for about a week after the accident. She took regular pain relief for about two weeks. The bruising of the back resolved itself, but, according to Miss Widlake, she continued to have low back pain.
4. In this action Miss Widlake sought compensation for the injuries sustained by her on the occasion of her fall on 12 July 2004 and for the financial consequences which were alleged to have followed from those injuries. Liability to pay appropriate compensation was accepted on behalf of BAA. It was accepted that she had suffered the injuries which I have described. It was noted on behalf of BAA that the soft tissue injuries had mostly resolved themselves within a fortnight of the accident, but that the resolution of the bruising to the right thigh and thoracic area took about six to eight weeks. In the light of medical advice, to which I shall come, it was accepted on behalf of BAA that Miss Widlake had suffered aggravation for about 12 months of pain in her lower back referable to degenerative changes which existed prior to the accident. It was contended on behalf of BAA that the appropriate compensation for pain and suffering and loss of amenity in respect of the injuries which Miss Widlake had suffered, and the physical consequences of those injuries which BAA accepted, was £3,250.
5. However, there was a significant difference between the position of Miss Widlake and that of BAA as to the consequences for her back of the fall on 12 July 2004. Initially her case was that she had sustained continuing pain to her right sacro-iliac joint solely as a result of that fall. By the time of the commencement of the trial her case was that the deterioration in the condition of her lower back, which it was by then accepted was inevitable even without the accident, had been brought forward by five years as a result of the fall.
6. In addition, there was a significant difference between the parties as to the actual pain which Miss Widlake had experienced in her lower back as a result of the accident. Mr. Guy Sims, who appeared on behalf of Miss Widlake at the trial contended that, on her account of the pain which she had experienced, and on the basis that the deterioration in her pre-existing condition had been brought forward by some five years, the appropriate quantum of damages for pain and suffering and loss of amenity was £11,000.
7. The issue whether Miss Widlake had had the pain in her lower back aggravated for about 12 months, or whether the inevitable deterioration in her pre-existing lower back problem had been advanced by some five years, was of considerable significance in financial terms. If the position adopted on behalf of BAA was correct, the worth of the claim made on her behalf for special damages, according to BAA, was £2,022.38. Her case, as set out in her third Schedule of Loss, dated 16 October 2008, was that the worth of her special damages claim was £23,906.40.
8. There was little difference between the parties as to the financial losses which Miss Widlake had sustained in the event that I found that her case as to the effect of the accident on her pre-existing lower back pain was correct. Miss Widlake had remained in the employ of BAA after the accident, and remained in its employ at the date of the trial. However, she had ceased to work as a security guard. With effect from 6 April 2007 she had been employed as a Standards Officer. What had actually happened in relation to her employment she described in her second witness statement, dated 14 December 2007, as follows:-

"2. … I was off work initially until the 9^th August 2004. … Having returned to work I was not managing well and I was finally sent home on the 29^th August 2004 in pain and discomfort because I could not do my work. I was then off work until the 8^th September 2004. I then returned back to work again on light duties doing what I could. I was taking a lot of pain killers at this time and I was also having odd days off where I was sent home during my shift as I was in too much pain.

3. I was according to my diary sent home for example on the 20^th January 2005 and I was off until the 21^st January 2005. I was off again on the 2^nd and 3^rd February 2005 and the 11^th February 2005. On the 3^rd April 2005 I was put on an overtime ban so that I could only do my normal hours. On the 26^th April 2005 I was taken off the arch all together [sic].

4. At about this time I was having regular physiotherapy which was organised through my employers with Janet Rosie who is a Physiotherapist who attends Stansted Airport and provides physiotherapy to BAA employees without charge to the employee, the Physiotherapist being paid by BAA. I was at this time referred to the Company doctor. My in house physiotherapy with Janet Rosie ceased on the 15^th September 2005.

5. I was off again on the 19^th and 20^th September 2005 because I could not manage.

6. On the 27^th January 2006 I was ordered off the job completely and told to go home as it was apparent I could not manage. I was hobbling in considerable pain and barely able to walk. The Senior Duty Manager at this point saw a copy of Miss Porter's report that had been obtained by my Solicitors, the report caused considerable concern and I was sent home. I was then off work until the 23^rd June 2006.

7. On the 23^rd June 2006 I returned to work on light duties doing 4 hours a day but I was paid in full that is for 40 hours a week. I lasted a couple of weeks doing this but then the pain was really bad again and I could hardly walk. At this point in time I was offered redeployment to the Recruitment Office which was an office job. I could manage this because I could sit and stand as required and I started to do 4 hours a day 4 days a week at the Recruitment Office and gradually increased my hours to a 40 hour week. On the 6^th April 2007 I was able to obtain permanent employment as a Standards Officer which is an office job. BAA had told me that unless I could find a suitable job within their organisation they would have to consider dismissing me. As a Standards Officer I verify the history of every employee on the airport who applies for an air side pass and I have to go back over their employment history etc for 5 years. I can sit, stand and move around as I need to. I have tried very hard not to take any more time off since starting work as a Standards Officer apart from the odd day since I feel I am now at a point where my employers would commence disciplinary proceedings for absences. I work 40 hours per week.

8. I have not been allowed to do overtime since the 3^rd April 2005. I no longer receive my early start pay which is paid for early shifts whilst I was working as a Security Guard. I received [m]y early start pay until the 6^th April 2007 apart from when I was off sick from January to June 2006. From the 6^th April 2007 I have not received overtime nor early start pay. As from the 6^th April 2008 I also loose [sic] my shift premium pay."

9. Whilst there was a dispute as to the accuracy of the accounts which Miss Widlake gave in that passage as to her suffering pain, it was not in dispute that her employment history had been as she said, or that she had ceased to received overtime or early shift allowance as she contended. Consequently, there was little dispute that, if Miss Widlake had indeed had the effects of her pre-existing low back problems advanced by five years as a result of her accident, she had suffered the losses claimed in respect of overtime and early shift allowance over that period. It was not alleged on her side that she had suffered any loss of basic pay up until her appointment as a Standards Officer. There was, I think, no dispute as to the difference between the pay she received as a Standards Officer and the pay which she would have received had she continued to be employed as a security guard. The amount of that difference was claimed by Miss Widlake from the date of her commencing to work as a Standards Officer until 12 July 2009, the fifth anniversary of her accident.
10. The only live issues in relation to special damages at the trial were whether Miss Widlake had proved the cost to her of attending her general medical practitioner in relation to the consequences for her of the accident, and whether she had proved the cost to her of medicines prescribed to combat those consequences.
11. The important issues for determination at the trial were thus, first, whether the effect of the accident on Miss Widlake's back was simply to aggravate the pain resulting from pre-existing degenerative changes for about 12 months or to advance the inevitable deterioration in the pre-existing low back problem by about five years; and, second, the extent of the pain which Miss Widlake actually suffered by her between the date of her accident and the end of the period which I find is that over which the pain in the back was aggravated or by which the inevitable deterioration in her condition was advanced. It is convenient to consider these issues together.

Miss Widlake's low back pain

12. The evidence of Miss Widlake suffering from low back pain before the accident was to be found in various medical documents disclosed for the purposes of this action.
13. The document which was earliest in time to which it is necessary to refer was dated 26 May 1999 and was written by Mr. Ismail, Specialist Orthopaedic Registrar at Royal London Hospital to Miss Widlake's general medical practitioner of the time, Dr. Bhowmik. The letter included:-

"I reviewed this lady complaining of severe neck pain as well as back pain, which she puts down to severe whiplash injury, sustained as a result of a car crash in May 1997. It was a high impact collision which happened in the early hours of the morning. However, in the evening she had to cope with pain in the back as well as her neck and this lasted for a few days. A couple of months later she felt better and, in September 1997 when she was in a cinema, the pain returned with no evidence of trauma or injury. Since then, she has been in continuous pain, which has not yet subsided. The neck pain is worse at night. She has also started complaining of severe back pain that radiates to her right leg. She also complains of paraesthesias, which frequently radiates to her left upper arm and involves most of the digits. She is also complaining of loss of strength in her left upper arm and says she has difficulty in lifting her left hand very high. Coughing and straining causes pain in the neck as well as lower back. She can manage to drive a 4-wheel drive car. Her work environment has been modified to help her. She is now unable to use a keyboard."

14. As it turned out, the pain in her neck which Miss Widlake was experiencing in 1999 proved to have been caused by a cervical meningioma. That was excised in 1999. It was common ground between the consultant orthopaedic surgeons instructed on behalf of Miss Widlake and BAA for the purposes of this action, respectively Mr. Robert Macfarlane and Mr. M.R.K. Karpinski, that the cervical meningioma was immaterial to any issue in this action.
15. It was recorded by her general medical practitioner of the time that on 3 July 2000 Miss Widlake was seen and was certified as unfit for work for a period of a further 8 weeks on account of pain in "Neck/Back".
16. Miss Widlake visited her general medical practitioner again on 14 April 2001. What was recorded on that occasion was:-

"Felt pain in back & lump yesterday. Soft tissue fibrous & tender – probably acute soft tissue."

17. The next significant reference in Miss Widlake's medical records to pain in her back was that made by her general medical practitioner, by this time Dr. M.D. Lurkins, on 20 August 2003. Unfortunately the relevant entry is almost impossible to decipher. Certainly those unused to interpreting the handwriting of medical men would, I think, find it completely impossible. Mr. Macfarlane recorded his understanding of the entry, and subsequent relevant entries, at paragraph 21 of his report dated 23 January 2008 as follows:-

"An entry in the G.P. records, 20 August 2003, reports sacroiliac joint pain. An x-ray of this region and physiotherapy were requested. A G.P. entry, 20 August 2003, is difficult to read but I think it refers to a painful lump over the sacroiliac joint. "Describes pain + relates to s.i. jt." Plain radiographs of the pelvis and sacroiliac joints, 28 August 2003, were reported: "Normal appearances". The request for that investigation describes the clinical history: "Persistent pain over R s.i. jt." The next G.P. consultation, 29 September 2003 reports: "Still LBP (low back pain). X-ray n.a.d. ? for physio" She was seen again at the surgery on 10 November 2003 with neck pain and swelling in the right supraclavicular fossa."

18. It appears that the query about the suitability of Miss Widlake for physiotherapy arose by reason of the fact that she had had the cervical meningioma removed in 1999. She was referred back to Professor Richardson at Royal London Hospital, who had carried out the excision. His views about the position, including his view about the lump on her lower back about which she had previously consulted her general medical practitioner, were set out in a letter to Dr. Lurkins dated 13 October 2003, following an examination of Miss Widlake on 9 October 2003:-

"As you know, this lady underwent surgery for cervical meningioma four years ago with no residual symptoms. She was well until about seven weeks ago when she developed lower back pain without sciatica. The pain has subsided since she is relieved from her normal duties, searching bodies at Stansted Airport. She has also noted a little lump in the fatty tissue in the right paralumbar region.

The lump appears to be a lipoma which does not require treatment. I think that she would benefit from a course of physiotherapy and we will right [sic] to a local physiotherapist when she provides a name. "

19. The last reference to Miss Widlake's back in any medical document generated prior to the accident to which it is appropriate to refer is another letter to Dr. Lurkins, this time from Princess Alexandra Hospital in Harlow, Essex, dated 22 April 2004. The material part of the letter was in these terms:-

"This patient of yours was seen and assessed here at 20:46 on 22/04/2004. Their referral source was NHS WALKIN CENTRE, and presenting complaint was NECK/BACK PAIN.

Following examination, the following diagnosis was made

1: WHIPLASH INJURY NECK

Investigations carried out were

CERVICAL SPINE X-RAY

Treatments given were:

RE-ASSURANCE VERBAL ADVICE

WRITTEN ADVICE

Outcome: DISCHARGED TO CARE OF GP"

20. There was some discussion during the course of the trial in cross-examination of Miss Widlake herself, Mr. Macfarlane and Mr. Karpinski of the significance of particular entries which I have quoted. However, it was common ground between Mr. Macfarlane and Mr. Karpinski, as they set out in a joint statement which they prepared setting out those matters relevant to this action about which they were agreed and those about which they disagreed ("the Joint Statement"), that:-

"2. The claimant also had a significant pre-accident history of lumbar symptoms. The medical records refer to severe back pain radiating to the right leg in 1999. There is reference to right lumbar back pain in 2001, and sacroiliac joint pain in 2003."

21. Mr. Macfarlane was not the first consultant to have been retained on behalf of Miss Widlake in connection with her claim for compensation for her injuries sustained in the accident on 12 July 2004. Her first consultant was Miss J.E. Porter. Miss Porter saw Miss Widlake on two occasions and prepared two reports. In addition, she wrote two letters relevant to the case. All of this material was put in evidence.
22. Miss Porter's first report, dated 15 March 2005, was prepared following an examination of Miss Widlake on 11 March 2005. Miss Porter recorded in her report, at paragraph 6.2:-

"She reports no past history of low back pain and this is confirmed by review of the records. There is no other relevant past medical history."

23. From the records from which I have cited, it is plain that Miss Porter was not provided with a complete set.
24. The second report of Miss Porter, dated 8 February 2006, and prepared following a further examination of Miss Widlake on 27 January 2006, included, at paragraph 5.1:-

"Ms Widlake's past medical history was covered in my previous report. She tells me that she has had no medical problems other than those related to the accident, since my last examination."

25. Miss Widlake saw Mr. Macfarlane for the purposes of enabling him to prepare his report dated 23 January 2008 on that date. He took a medical history from her. He recorded what he had been told at paragraph 2 of his report:-

"Sometime around 1999 she presented with a three year history of numbness and tingling affecting the arms/legs. This, on investigation, was found to be due to a meningioma in the upper cervical region. She underwent surgery under the care of Professor Richardson at the Royal London Hospital, and went on to make a full recovery. She was asymptomatic apart from occasional neck pain. There was no low back problem prior to the index accident."

26. Mr. Karpinski told me in cross-examination that he had available to him at the time of his examination of Miss Widlake on 7 December 2007 all of the medical records from which I have quoted, but that he did not ask Miss Widlake about any of the entries indicating pre-existing low back pain. It does not appear that he sought to take a medical history from her based simply on her professed recollection of events.
27. Miss Widlake was cross-examined about the various indications in her medical records that she had suffered from low back pain prior to her accident on 12 July 2004. About the position in 1999 she told me that what she remembered about that was the tumour on her neck and associated pain in the upper back. She said that she did not recall at all complaining to her general medical practitioner about pain in her back in July 2000. She also told me that she did not recall the episode in April 2001 which was noted in her medical records, or the lower back pain recorded in 2003. So far as the latter was concerned, what she did recall was a painful lump in her lower back. The hospital record of an attendance in April 2004, Miss Widlake told me, related to her attending hospital to have her neck checked over after being involved in a road accident. She agreed that Mr. Macfarlane had recorded accurately at paragraph 50 of his report:-

"It is the claimant's recollection that she had never suffered from low back pain prior to the index incident."

At the time she saw Mr. Macfarlane, Miss Widlake said in her cross-examination, she had forgotten that she had had lower back pain previously.

28. As I have noted, Miss Widlake was examined by Mr. Karpinski on 7 December 2007 and by Mr. Macfarlane on 23 January 2008. She told each that was taking a pain killing drug, Co-codamol, and an anti-inflammatory drug, Ibuprofen. Mr. Karpinski noted at page 3 of his report that:-

"At this moment of time she remains on Cocodamol, Ibuprofen and night sedation if necessary."

What she told Mr. Macfarlane he recorded at paragraph 8 of his report:-

"She takes Co-Codamol, as required, for pain. On average this amounts to 1 – 2 per day, in addition of ibuprofen 600mg o.m. However, she finds both kinds of medication too strong when at work and, instead, will take either paracetamol or Nurofen."

29. Mr. Macfarlane told me that Co-codamol is a combination of codeine and paracetamol. It apparently comes in two strengths of codeine, with 500 mg of paracetamol in each case. The two codeine strengths are 8 mg and 30mg. Miss Widlake seems to have been taking the type of Co-codamol with the lower dose of codeine. Mr. Macfarlane also told me that the effects of taking Co-codamol in the strength apparently taken by Miss Widlake, and the effects of taking Ibuprofen in the strength apparently taken by Miss Widlake, can be achieved by taking the requisite quantities of medicines available without prescription over the counter in a pharmacy, although Miss Widlake, at least at one time, seems to have obtained her medicine on prescription.
30. Taking the drugs which she told Mr. Karpinski and Mr. Macfarlane she did at the dates of their respective examinations, Miss Widlake was, she told each of time, constantly in pain. The account of the pain which she gave to each of Mr. Karpinski and Mr. Macfarlane was similar.
31. Mr. Karpinski recorded the complaints of Miss Widlake as communicated to her at page 4 of his report:-

"Right Sacroiliac Joint

Miss Widlake volunteers that she continues to experience a chronic constant feeling of pain in the right sacroiliac joint described as a cramp, stabbing pain, which radiates not only down the back of the buttock and thigh but also occasionally to the front. She describes a reduced sensation in a stocking glove fashion, from the groin downwards, and the whole leg going numb. She actively avoids any full weight bearing on the right leg and has now developed problems with the left. Her chiropractor has informed her that this is due to over-compensation. There is no actual motor weakness, spinal tilts or sphincter dysfunction. Valsalva manoevres, coughing, sneezing and straining are unaffected.

Psychologically

She has become depressed because of the constant pain, stabbing and cramps, which have failed to resolve. She feels frustrated because of the pain, which is having an adverse effect on her daily life."

32. What Mr. Macfarlane recorded Miss Widlake as saying to him was to a very similar effect:-

"PRESENT COMPLAINTS

Low Back Pain

31. There is a constant cramp-like pain in the region of the right sacroiliac joint with intermittent sharp exacerbations. The latter are provoked by activities such as walking, driving, vacuuming, or sitting for more than around 20 minutes. Symptoms are eased by altering posture or slouching in a chair with her legs elevated. The sharp exacerbations can last for anything from a few minutes to an hour. Her back is very stiff in the mornings and she finds it uncomfortable to lie down for prolonged periods. On an analogue scale of 0 (no pain) to 10 (the most unbearable pain imaginable) she rated back pain between 2 and 8, with an average of 5 – 6.

Right leg

32. Several times a day Miss Widlake will experience a sharp shooting pain which begins in the region of her right buttock and radiates down the back of the thigh. At times it may extend down the back of the leg to the dorsum of the foot whilst, at others, it may radiate into the shin and dorsum of the foot. Leg pain has the same exacerbating and relieving factors as back pain, although at times it can develop without apparent precipitant. If it develops when she is standing, Miss Widlake will sit down with her leg up. Alternatively, if it occurs when sitting, she will get up and potter around. On the analogue scale she rated leg pain at up to 9.

33. At times during the transition from sitting to standing both legs will go numb from the groin down. This will last for a few minutes and then resolve, particularly if she stands up and moves around. The right leg feels weak, particularly in hip flexion. Occasionally it will let her down, although there have been no falls. "

33. A question which both Mr. Karpinski and Mr. Macfarlane addressed in preparing their respective reports is what is apparently called "illness behaviour". This, as I understand it, is a patient describing symptoms for the presenting condition for which there is no organic cause in the condition in question. "Illness behaviour" includes, but is not limited to, malingering. In relation to back injuries there are, I am told, particular tests for "illness behaviour" which are called "Waddell's signs". Mr. Karpinski dealt with his conclusion following examination of Miss Widlake, and the issue of "Waddell's signs", on page 20 of his report:-

"I believe that Miss Widlake's current symptoms are related to mechanical backache, which is secondary to a very mild loss of MRI generated disc signal from the L5/S1 intervertebral disc and heightened response to her disability. This is reflected in the examination section at the consultation. It is also noteworthy that in investigations under the care of the Royal London Hospital Orthopaedic Unit, Mr. Ismail identified three of the Waddell's signs being positive out of five, indicative of a non-organic component date back those years. For the purpose of the Medical Report, I stress there was no evidence of positive Waddell's signs. "

34. That, however, was not the experience of Mr. Macfarlane. At paragraph 38 of his report, under the rubric "Examination", he wrote, so far as is presently material:-

"Miss Widlake stood for part of the interview. She appeared stiff on rising and walked with an antalgic gait. There was evidence of illness behaviour, with complaints of lumbar tenderness to even light skin touch. She also complained of pain on simulated rotation but not axial compression. .."

35. The computerised record of Miss Widlake's visits to her general medical practitioner were put in evidence. She attended on the day after the accident, and then again on 21 July 2004, principally, it seems from the record made, in order to obtain a sickness certificate. She was certified unfit for work for 2 weeks on the latter occasion. She did not return to her general medical practitioner complaining of low back pain again until 1 September 2004. On that occasion she was certified unfit for work for a week. However, her next attendance in connection with back pain was not until 9 May 2005. The suggestion at that time was that she have physiotherapy. Such physiotherapy was arranged at her work at Stansted Airport. Miss Widlake returned to her general medical practitioner on 22 September 2005 complaining of a pain in her right sacro-iliac joint which had been continuing for 18 months, since her fall. It was recorded that she wanted an orthopaedic assessment, and that "Also getting intermittent paraesthesia arms and episodes of numbness left leg."
36. The next appointment which Miss Widlake made with her general medical practitioner was on 30 January 2006. What was then noted was:-

"H/O orthopaedic disorder. Fell down stairs at work approx 18 months ago and still currently ongoing with work. S/e orthopod and told unfit for current work – security for BA. Has appt with occupational gp to discuss redeployment. Until then told must have sickness cert."

A certificate that Miss Widlake was unfit for work until 15 February 2006 was issued.

37. Miss Widlake returned to her general medical practitioner on 15 February 2006. What was then recorded was:-

"Low back pain esp around L [left] SI [sacro-iliac] joint. C/o constant pain in SI joint and pain radiating down back L leg and numbness toes – s/b orthopaedic clinic – adv chiropracter [sic] – referred and needs cert fmed 3 back pain and inflamed SI joint 4/52."

38. A series of sickness certificates were then issued, to the overall effect that Miss Widlake was unfit for work until June 2006. The last record of an attendance in 2006 was on 12 June:-

" Seen by chiropractor SHE HAS REPORTED A 50% IMPROVEMENT AS THE[R]E IS LESS CONSTANT AND INTENSE LOW BACK PAIN AND NO LONGER HAS THE RIGHT LEG PAIN OR THE N[U]MBNESS IN THE RIGHT FIRST AND SECOND TOES I ADVISED AGAINST AN[Y] PROLONGED SITTING AND LIFTING REPETITIVE BENDING OR CARRYING."

39. While the evidence was somewhat lacking, it seemed that Miss Widlake's case was that she had seen her general medical practitioner twice in 2007 on account of problems in her back, and not at all in 2008.
40. In the first Schedule of Loss compiled on her behalf, dated 6 June 2007, and in the second, dated 16 August 2007, claims were made on behalf of Miss Widlake for loss of earnings as a security guard for the rest of her working life, the alleged element of loss being put at £148,878.20. That claim was modified to a claim for loss for a period of five years from the date of the accident only in the third Schedule of Loss, dated 16 October 2008.
41. In Miss Widlake's first witness statement prepared for the purposes of this action, dated 4 October 2004, she did not say much about the effects upon her of her fall slightly less than three months earlier. What she said was:-

"7. I have not made a good recovery from my injuries and I am having physiotherapy at the Airport Physiotherapist. I have been told that I have sustained a jarring type of injury to the bottom of my spine. I still have back pain which interferes with my keep fit exercises and I cannot use my cross trainer. I am also working restricted duties since I cannot carry out body searches at the moment as I find it difficult to bend, equally for the same reason I am unable to load the x-ray machine in the search area."

42. That account indicated consequences considerably less serious than those reported to Mr. Karpinski and to Mr. Macfarlane. A rather more dramatic account was given by Miss Widlake in her second witness statement, dated 14 December 2007:-

"9. My main problem is the pain in my back and right hip which radiates down my right leg. It goes down the back of the leg for most of the way and every now and then my foot goes numb. I have a permanent feeling of cramp with stabbing pain every few minutes. Pain killers help and I take Co-Codamol and prescription strength Ibuprofen both of which are prescribed by my GP. I also use ice packs and at work because I cannot keep the ice packs cool I use deep freeze gel. I try to take no more than 2 Co-Codamol a day and 1 Ibuprofen.

10. Walking a distance makes my backache worse. Pushing a shopping trolley is bad. I avoid lifting. I can only drive for short distances before the pain starts I would say that I can drive a maximum of about 30 minutes. Fortunately, my drive time to work is about 15.

11. …

12. I regularly attend the Braintree Chiropractic Clinic and I feel that the continued assistance from them helps me to keep going. I used to go once a month but now I have reduced this down to every six weeks.

13. I am tearful a lot of the time as I am in pain and it does not feel as if it will ever get any better.

14. My left hip is also painful now as I am over-compensating for the pain in my right hip and my left ankle also feels painful.

15. I cannot sit on a chair properly and I cannot sit for long in an upright position.

16. I wake up at night in pain.

17. I find sex with my partner painful and I often end up crying with pain which does not help either of us in our relationship."

43. Based upon his examination of Miss Widlake, Mr. Macfarlane expressed these opinions in his report:-

"53. Miss Widlake fell down a flight of stairs around 3½ years ago. She developed multiple bruising, consistent with this mechanism of injury. The soft tissue trauma elsewhere appears to have resolved without complication, but Miss Widlake has been left with pain in the low back radiating to the buttock and occasionally into the thigh. Clinically she is very tender in the region of the right sacroiliac joint. I agree with Miss Porter that it is from here that the majority of symptoms probably emanate.

54. Although Miss Widlake has improved to the point at which she is working full-time, she reports significant restrictions in terms of ability to sit/stand/walk and the attendant social limitations. I agree with Miss Porter that, with symptoms having failed to resolve with a combination of manipulation and a change in work, injection of the right sacroiliac joint is appropriate. I recommend that she be referred to a consultant in pain management with a view to this.

55. I disagree with Miss Porter with regards inappropriate features. Chronic pain is a debilitating condition and, in my opinion, there is evidence of illness behaviour. Although it is difficult to exclude malingering on the basis of a single consultation, I think she does have genuine symptoms emanating from the sacroiliac joint and any exaggeration is likely to be unintentional.

56. Generally, symptoms of this type will respond well to treatment in the Pain Clinic although it is unclear whether her condition will resolve entirely having now been present for more than three years. Even were she to have a good outcome, my advice would be that Miss Widlake should not return to her previous work. She would be better suited to sedentary or light physical work that gives her the opportunity to vary her posture. She should avoid activities that involve repetitive bending, twisting, and heavy lifting.

57. Without sight of the MRI scan requested in 2006, I would not wish to finalise my opinion on causation or prognosis. Although plain radiographs appear unremarkable, they are not a sensitive investigation for the assessment of back pain. My provisional views on causation are as follows:

58. Whilst symptoms stem from the index accident I think, in due course, Miss Widlake would in any event have suffered a relapse of her previous problems with the sacroiliac joint. However, there is no evidence to indicate that the previous episodes were either prolonged or debilitating. This suggests that any acceleration period is unlikely to be short. Whilst accepting that there is no scientific basis upon which to base such estimations, I think a reasonable estimate would be an acceleration period of around 5 years. "

44. I have already set out the view of Mr. Karpinski as to the cause of the symptoms of which Miss Widlake complained to him. Earlier in his report, at pages 18 – 19, he wrote:-

"The accident of 12.07.04 I believe resulted in a jarring injury in and around the lumbar sacral area, causing mechanical back symptoms, for which Miss Widlake was treated accordingly. Reference continues to low back pain although a gap in the GP notes appertaining to low back conditions in late November and the early months of 2005 before again re-attendance at her GP in May 2005. On 15.02.06 there is now reference to left-sided SI joint pain with pain radiating into the left leg and numbness in the toes. The reference to pins and needles and numbness in the feet would almost certainly be referral to the lumbar sacral intervertebral disc. The sacroiliac joints per se do not give, unless there is a markedly displaced fracture, paraesthetic changes and numbing feelings in the feet and ankles, confirming my assessment in that Miss Widlake's symptoms are more likely due to mechanical low back pain secondary to disc degeneration and lumbar spondylosis.

Miss Widlake continues to undergo regular treatment, both physiotherapy and chiropractic manipulations, at times with quite beneficial responses although subsequent fallback and regression. Symptoms fluctuate in the degree of severity, often mechanically related and she requires a happy medium of standing, walking and sitting to cope.

The pattern of back pain presentation is very classical of a natural history of lumbar spondylosis, in that an accident causes a further blip on the natural course and then the history returns to what is considered a normal pattern for the patient.

The latter point has been evaluated by Carragee et al, Minor Trauma and Low Back Pain Disability 5-year prospective review presented at an annual meeting of the North American Spinal Society in Philadelphia 2005. A summary appears in the back letter published by Lippincott Williams and Wilkins Volume 20 No.11 November 2005. It is in response to the validity of a concept of whether an injury model can lead to a relatively straightforward minor back injury. Carragee, from the University of Stanford, California, reviewed a large number of patients and found that serious low back pain and disability do not stem from minor trauma or structural problems or a combination of both. The article also refers back to previous published data by Hamilton Hall, Internal Spine Society, Study of the Lumbar Spine, ISSLC in Helsinki 1995, in which the clinician studies 11,000 patients of the Canadian Back Institute and found the majority of individuals were not involved in workers' compensation and that 67% of these could not identify a traumatic cause of their pain. He came to the conclusion that a spontaneous onset is part of the natural history of low back pain.

The reference to the papers as well as the natural history need to highlight that any injury superimposed on a pre-existing condition leads to a transient aggravation and then a return to a normal pattern of symptomatology as the natural history progresses. There is little evidence to support a radiological advancement of the pathological process of disc degeneration or lumbar spondylosis.

Taking these factors into consideration, I therefore believe that Miss Widlake's injuries from a jarring of the lower back would have largely settled over a period of some 12 months post-injury."

45. On 19 and 21 April 2008 Miss Widlake was covertly filmed on behalf of BAA. Extracts of the films taken were put in evidence. On 19 April 2008 at about 9.32 a.m. Miss Widlake was filmed getting into a motor car. On 21 April 2008 at about 11.38 a.m. she was filmed in a shop. Whilst talking to an assistant she appeared plainly at one point to be placing her weight upon her right leg. At 11.54 a.m. and again at 11.58 a.m. on 21 April 2008 Miss Widlake was filmed walking in Braintree, Essex, the town in which she now lives. At about 12.22 p.m. she was filmed walking back to her car. At about 12.27 p.m. she was filmed unloading her car and entering her house. As it seemed to me, during all of these activities, upon which reliance was placed especially on behalf of BAA, but also during what was seen in other parts of the extracts, Miss Widlake was acting completely normally, as if she had no pain or disability.
46. Miss Widlake was informed of the taking of the covert film and invited to comment upon it. She did so in a witness statement dated 2 October 2008. The relevant parts of that statement were:-

"3. On the 19 April 2008 (the first day of filming) my friend said she would take me to a spa for my birthday to cheer me up as I had recently been very down. Before she came I had breakfast in order to be able to take some pain killers to ensure that I kept pain to a minimum. I took two co-codamol which are 500g [sic] each along with 15 mgs of codine [sic] and one dicolfenac of 50 mg. I took the pain killers about an hour before leaving home.

4. The bag that I can be seen carrying contained a swimming costume, a towel, a hairbrush, hair band and a small bottle of water. The bag was not heavy and I could manage the weight in it.

5. After we finished in the spa I took more pain killers before then going to lunch and then my friend dropped me off at home. I had a light shopping bag with me at this stage containing a dress. When I returned home I sat with an ice pack on my back with my legs up. I always do this for 20 minutes when returning home.

6. The next day that I was filmed it was my birthday and I had been given a top by my father that was too small and a digital photo frame that was not compatible with our computer and I decided to change them. Before I left the house I took pain killers. I knew I would not be out for long and took two co-codamol and a diclofenac. I drove into town, which is less than five minutes from our house. I parked close to the shop. I took the top back to change and then went to Argos to change the photo frame I then went back to the car park and it can be seen I have a slight limp by this stage. I then went back home via Tesco's to buy a card. It can also be seen that in Tesco's I am walking with a limp. I then returned home and did nothing for the rest of the day.

7. On a daily basis I take pain killers up to 4 or 5 times a day depending on how I feel. Whilst at work I use freeze gel and at home I use ice packs on a regular basis. I am unable to use ice packs at work as I work airside."

47. According to the evidence contained in her respective witness statements, Miss Widlake's consumption of drugs increased quite substantially over the period since 12 July 2004. In her first witness statement she made no reference whatsoever to taking drugs. The treatment mentioned at that time was physiotherapy. In her 14 December 2007 statement she said that she tried to take no more than two Co-codamol tablets and one Ibuprofen tablet a day. However, by 2 October 2008 she was, apparently, taking pain killers (unspecified, but apparently including Co-codamol, codeine and Dicolfenac) four or five times a day.
48. The disagreements between Mr. Macfarlane and Mr. Karpinski as recorded in the Joint Statement were as to the precise source of the ongoing symptoms from which Miss Widlake suffered, which disagreement they agreed was not, in fact, of great significance, and the effect of the injury to her back, whether amounting to an aggravation for about 12 months of her existing symptoms, or advancing by about five years the inevitable deterioration in her pre-existing condition. By the date of the preparation of the Joint Statement both Mr. Macfarlane and Mr. Karpinski had seen the extracts from the covert filming which were put in evidence. What Mr. Macfarlane and Mr. Karpinski recorded in the Joint Statement they agreed about included:-

"7. She complains of a chronic constant pain in the right sacroiliac region which radiates to the right buttock, the back of the right thigh and at times to the foot and ankle. We agreed that it would not be expected for sacroiliac joint pathology to radiate below the knee. As a consequence of ongoing symptoms she described being unable to undertake security duties and has since been redeployed to sedentary work. She reports limiting social activities to those that are less physically demanding.

8. We agreed that, clinically, Ms. Widlake reports pain in the region of the right sacroiliac joint. She has limited spinal movement, but with full straight leg raising and no neurological deficit in the lower limbs. We agreed that there was some evidence of illness behaviour. Mr. Korab-Karpinski thought that there was deliberate slowness of movement at the time of his examination, emphasising her disability. At the time of his examination, Mr. Macfarlane was of the opinion that it was probably unintentional.

…

10. We have reviewed the surveillance that was taken on several dates in April 2008, including the surveillance log and Ms. Widlake's comments on it. We agree that the surveillance video does not show any evidence of overt disability. In particular, she walks without the antalgic gait that was evident at the time of our examinations. Mr. Macfarlane was uncertain whether Mr. Korab-Karpinski was correct in asserting that the claimant had been deliberately exaggerating her disability at the time of examination, or whether the difference could be accounted for by her having taken analgesics.

11. If the surveillance imaging is an accurate reflection of the claimant's level of activity having taken analgesia then there should be few social limitations on account of back pain, other than avoiding heavy lifting and prolonged bending."

49. In cross-examination Mr. Karpinski told me that he doubted that the quantities and types of drug which Miss Widlake said that she had taken before the activities filmed covertly would have been sufficient to transform her from suffering acute pain, as she contended was her normal condition, to being able to operate as shown in the film. Mr. Macfarlane, in response to a question from me, said that it would only be if the quantity of pain – killing drugs taken was exceptional for Miss Widlake that he thought that it could have had that effect. He also told me that a possible explanation for the difference between how Miss Widlake seemed to be on the occasion of his examination of her and how she appeared in the film was that she was a person affected by medical examinations so as to appear worse than she actually was. It would follow from that explanation, if correct, that the actual normal condition of Miss Widlake was that demonstrated by her activities shown in the film.
50. Mr. Karpinski told me in cross-examination that he did not consider that the injuries which Miss Widlake sustained in her fall on 12 July 2004 were of sufficient severity to produce the symptoms of which Miss Widlake complained. He also said that if Miss Widlake was suffering the pain she alleged one would have expected more regular attendance at her general medical practitioner's surgery than the records indicated had taken place. He pointed out the long gaps in attendances related to back pain.
51. Both Mr. Macfarlane and Mr. Karpinski had noted that in the records made by Miss Widlake's general medical practitioner there was reference, in relation to an attendance on 15 February 2006, to pain not being in her right sacro-iliac joint, as was her case before me, but to being in the left sacro-iliac joint. I think that it was common ground that one would not expect the pain to move from one side to the other. When asked about it in cross-examination Mr. Macfarlane told me that if someone who was suffering pain on one side of her hip altered her posture, that could produce symptoms in the other hip. He also said that the brain was not very good at working out where deep – seated pain came from. However, the fact of the matter is that there seems to have been but a single reference to pain in the left sacro-iliac joint, but it was noted as constant, radiating down the back of the left leg and causing numbness to the toes. If the record was correct, and the symptoms genuine, one wonders why the pain and the other symptoms just seemed to disappear. It is obviously possible that the record was erroneous in referring to the left sacro-iliac joint, rather than the right.
52. I was not impressed by Miss Widlake as a witness. I considered her explanations offered in cross-examination on the important issues of why she had not disclosed to Miss Porter and to Mr. Macfarlane the previous history of her back problems and why she appeared to be acting perfectly normally in the extracts from the film which were put before me to be implausible. The truth of the matter, as I find, is that, while she did injure her back in the fall on 12 July 2004, the consequences were comparatively minor, as indicated by the first account contained in her witness statement dated 4 October 2004, which contained no reference to the sort of pain later described, made no reference to taking any drugs at all, and seemed to limit the consequences of the injury which endured to interference with keep fit exercises, the inability to use her cross trainer, and not being able to bend at work to carry out body searches. I find that Miss Widlake, who was obviously a person of reasonable intelligence, deliberately concealed the previous history of her back from Miss Porter and then from Mr. Macfarlane, in the hope of increasing the amount of the compensation which she would recover in respect of her injuries in her accident on 12 July 2004. I find that what was seen in the extracts of the films taken on 19 and 21 April 2008 which were put in evidence is accurately representative of what Miss Widlake can in fact undertake currently. I accept that she does have degenerative changes in her lower back and that those changes do cause her to suffer some pain. It may be that she takes pain – killing drugs from time to time, but, with the assistance of those drugs, she is in fact able to operate substantially normally. I accept that she should not engage in prolonged bending or heavy lifting, but that, in my judgment, is as a result of the progression of the existing condition in her back before the accident on 12 July 2004, not a consequence of that accident.
53. The only proper conclusion to draw from the account of the consequences of her injuries on 12 July 2004 given in her witness statement dated 4 October 2004, her deliberate concealment of her medical history in relation to low back problems, her episodic attendance in relation to low back pain at the surgery of her general medical practitioner since 12 July 2004, and what was seen in the extracts from the covert film which I have mentioned, seems to me to be that the suggestion of any significant pain in the back for more than a few weeks after the accident is not well-founded. I incline to the view, to which he himself was inclined after seeing the extracts of the covert filming, that Mr. Karpinski was, if anything, over-generous in taking the view that the consequences of the accident in relation to Miss Widlake's back was that it aggravated it for about 12 months, after which the pain in the back had subsided to the condition in which it would have been in any event.
54. While I was very impressed by Mr. Macfarlane as a witness, and am entirely confident that he was doing his best to assist me through his evidence, in the end I did not feel able to accept his opinion as to the consequences for Miss Widlake of the injury to her back on 12 July 2004 because I differed from him on a matter which is uniquely within my province, rather than his, namely the assessment of the evidence of Miss Widlake.
55. I was also impressed by Mr. Karpinski as a witness. He seemed to me to be conscientious, thorough and realistic in his approach to the issues in this case.
56. Although I was urged by both Mr. Alex Glassbrook, who appeared on behalf of BAA, and by Mr. Sims, to make a finding as to whether the view of Mr. Macfarlane that the source of the pain experienced by Miss Widlake in her back was the right sacro-iliac joint, or the view of Mr. Karpinski that the source was degenerative changes at the level of L5/S1, was correct, it does not seem to me to be necessary to make any such finding. The reason is that both Mr. Macfarlane and Mr. Karpinski agreed that the difference between them as to the source of the pain was not of great significance either in terms of causation or prognosis. Other than in respect of the source of the pain and the effects of the accident on Miss Widlake's back, there was no real difference between the evidence of Mr. Macfarlane and that of Mr. Karpinski. Save to the extent which I have already indicated, I accept the evidence of each of them.

The quantum of damages for pain and suffering and loss of amenity.

57. Plainly the quantum of damages for pain and suffering and loss of amenity to which Miss Widlake is entitled is a reflection of my assessment of what the consequences for her of her accident on 12 July 2004 were.
58. Both Mr. Sims and Mr. Glassbrook drew to my attention not only the terms of Section (B) of Chapter 6 of the current edition of "Guidelines for the assessment of General Damages in Personal Injury Cases" produced by Judicial Studies Board, but also a number of reported cases of assessments of damages where the claimant had sustained injuries broadly similar to those suffered by Miss Widlake. I think that the cases in question were all reported in Current Law. They were Bryant v. Munro, Ball v. Kelly, Peace v. Saville, Vincent v. Langmead Partnership and Carter v. Carlton Ltd.
59. The Judicial Studies Board publication was not of much assistance because of the limited consequences, on my findings, on Miss Widlake of the injuries sustained in the accident. Having regard to the other authorities to which my attention was drawn, I assess the quantum of damages for pain and suffering and loss of amenity to which Miss Widlake is entitled at £3,500.

Special damages

60. There was, I think, no dispute that, in the event that I found that the consequences for Miss Widlake of her fall on 12 July 2004 were resolved within 12 months, the loss of earnings which she suffered as a result of the accident was £2,022.38, as contended in the Defendant's Third Counter – Schedule.
61. Plainly it followed from my finding that the consequences were resolved within 12 months of the accident that Miss Widlake was not entitled to compensation in respect of future losses.
62. While there was a claim for costs paid by Miss Widlake for a chiropractor, it was common ground that she did not undertake chiropractic treatment until March 2006, after the date at which I have found that the consequences of the accident had resolved themselves. Consequently no part of those costs was recoverable. Equally irrecoverable was any part of the claimed costs of travelling to visit the chiropractor.
63. There was, in the claimant's third Schedule of Loss a claim which was put in this way:-

"2.3 Home to work

Prior to her accident and subsequently until June 2006 the claimant participated in a car share which meant she had to drive to work one week in 4. After the start of her secondment to Recruitment she no longer worked the same shifts as her colleagues and had to drive each week.

37 miles round trip

July 2006 until March 2008

91 weeks x 75% = 68 additional weeks driving

5 days 12,580 0.4 £5,032.00".

It was unnecessary to reach any conclusions about that claim because it related to circumstances which were not said to have arisen before July 2006.

64. The remaining claims for special damages were for the costs of travel to visit Miss Widlake's general medical practitioner, put at £2 per visit, and the costs of various prescriptions, put at £84 per annum.
65. The amounts of the special damages in issue in the light of my findings of fact made them barely worth arguing about. However, the position adopted on behalf of BAA was that there was no documentary or witness statement evidence in support of either element of claim, and thus each should fail. On behalf of Miss Widlake Mr. Sims submitted that the claimant's third Schedule of Loss, bearing a statement of truth signed by Miss Widlake, was evidence in support of these elements of claim, and that Miss Widlake had not been cross-examined in relation to either of them. It was true that Miss Widlake was not cross-examined about the alleged cost of travelling to the surgery of her general medical practitioner or about the alleged cost of prescriptions. However, how the claims were put in the third Schedule of Loss was, on its face, unsatisfactory.
66. The claim for travel costs to see Miss Widlake's general medical practitioner was put at a round trip of 5 miles at £0.40 per mile throughout the period from 13 July 2004 to 21 May 2007. No explanation was given of the alleged means of transport, whether by car, bus or some other means. In July 2004 Miss Widlake lived in Harlow, and had a general medical practitioner in Harlow. Her postal code was CM16 6QW. The postal code of the surgery of the general medical practitioner was CM16 6LY. There was no evidence how far the surgery was from Miss Widlake's home. By the end of 2007 Miss Widlake had moved to Braintree. Her postal code was CM7 9TU. She changed her general medical practitioner. The postal code of the surgery of the new general medical practitioner was CM7 9AA. Again how far the surgery was from Miss Widlake's home was not put in evidence. It seems unlikely that Miss Widlake's home in Harlow was precisely the same distance from the surgery of her general medical practitioner in Harlow as her home in Braintree is from her general medical practitioner in Braintree. Consequently, and notwithstanding that, on my findings, upon this issue depends a maximum of £8, I am not satisfied that it has been proved that Miss Widlake incurred expense in travelling to visit her general medical practitioner in the year 12 July 2004 to 11 July 2005.
67. The claim for costs incurred in obtaining prescription medicines was pleaded in the claimant's third Schedule of Loss in this way:-

"The Claimant obtains prescriptions of Tramadol, Co-codamol, Amitrypline and Diclofenac on average every 4 months from the date of the accident until present day.

12 x £7 (average prescription cost over the period) £84.00"

68. The claim thus included two types of drug, Tramadol and Amitrypline, which Miss Widlake had not mentioned in any of her witness statements she had taken. It did not mention two which she said that she had taken, Ibuprofen and codeine. It would seem surprising that the cost of each prescription was of the same order of magnitude, bearing in mind that Miss Widlake's evidence was that it was principally Co-codamol which she had taken. It ought to have been possible to adduce evidence to show properly how much had been spent on what quantities of what medicines at what dates. I have already pointed out that in her first witness statement Miss Widlake did not mention taking any drugs at all. Although the sum at stake is small, in my judgment the approach adopted to proving this element of claim was unduly casual. I am not satisfied on the evidence that any loss in terms of costs of prescription medicines had been proved.

Conclusion

69. In the result there will be judgment for Miss Widlake in the sum of £5,522.38, together with interest, which no doubt Counsel will be able to calculate and agree.