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
		8th March 2013

His Honour Judge McKenna:

Introduction

1. In this action Michelle Lay, the Claimant, whose date of birth is 15^th July 1973 and who is therefore now 39 years old, seeks damages for injuries sustained in an accident in the course of her employment with the Cambridgeshire and Peterborough Mental Health Partnership NHS Trust (the Defendant) on the 10^th May 2004 ("the accident") at the Lucille Van Geest Centre in Peterborough.
2. In the accident, the Claimant slipped on the floor injuring her back and she says (though this is disputed by the Defendant) her neck. As a result of her injuries, the Claimant's employment has been terminated on medical grounds and it is said that the Claimant has a substantial damages claim, valued in her Schedule of Loss at upwards of 1.792 million pounds, a valuation which is substantially disputed by the Defendant in its counter schedule. (See pages 53 and following in the bundle).
3. The Claimant's recovery has been complicated by the involvement of a consultant orthopaedic surgeon, Mr Shair in that she had surgery to her spine in 2005 (lumbar) and in 2006 (cervical) whilst under his care. The experts instructed by the Claimant and the Defendant are agreed that Mr Shair's involvement has made the Claimant's condition worse.
4. The Defendant has admitted breach of duty in that the floor was in an unsafe condition and the Defendant also accepts that as a result of the accident the Claimant sustained an injury to her coccyx and her lumbar spine but not to her neck. In this regard the Defendant, as it is perfectly entitled to do, has put the Claimant to strict proof as to the cause, nature and extent of any injuries. As a result, therefore, the Claimant has to establish on the balance of probabilities that she suffered an injury to her neck in the index accident. If she can do that, however, the Defendant goes on to assert that the symptoms were relatively minor, that they aggravated the Claimant's pre-existing constitutional condition and that the period of aggravation was limited to no more than 14 months and that thereafter any continuing symptoms reported by the Claimant were unrelated to the accident.
5. In July 2009 the Defendant commenced third-party proceedings against Mr Shair alleging negligence in connection with the surgery which he undertook on the Claimant both in respect of the lumbar and cervical spine.
6. The action has a complex procedural history which has included stays of proceedings and issues have arisen as to the nature and extent of admissions of liability and causation. Those matters do not however concern me since by an Order (bundle, page 135 at 136) dated 4^th October 2012, made by consent, Master Cook directed that there by a split trial and that the trial be limited to certain issues previously identified by HHJ Plumstead on 5^th March 2012 (paragraph 3) (bundle, page 128 at 129) which were to be tried as a preliminary issue. These issues are:

i) Did the Claimant damage her neck in the accident on 10^th May 2004?

ii) If she did damage her neck, is that damage causally connected with the symptoms subsequently related by her and if so, to what extent?

iii) If the Claimant had not damaged her neck in the accident then the what would have been her prognosis?

7. With that brief introduction I turn now to the three issues with which this trial has been concerned and record that I have heard evidence from the Claimant herself and from two experts, Mr Kirkpatrick a consultant neurosurgeon instructed by the Claimant. Whose reports are dated 26^th July 2007 ... page 166) 14^th August 2008 ( page 202) 22^nd June 2010 ( page 208) 7^th December 2011 ( page 212) 28^th March 2012 ( page 219) and 28^th December 2012 ( page 246) and Mr Marks a consultant orthopaedic spinal surgeon whose reports are dated 15^th November 2007 ( page 178) and 5^th April 2012 ( page 224.) In addition the two experts have produced two joint reports dated respectively 9^th March 2008 ( page 199) and January 2013 ( page 258(1)

Did the claimant damage her neck in the accident on 10^th May 2004?

8. The Claimant was alone when the accident occurred and much therefore turns on her credibility and reliability as a witness. The Defendant has sought to test the Claimant's credibility in cross-examination in particular by reference to the contemporaneous and near-contemporaneous records. The Defendant has itself called no evidence as to the accident circumstances.
9. The Claimant's account, which she did not depart from to any substantial effect in cross-examination, is contained in her second witness statement dated 25^th April 2012 and was therefore made nearly eight years after the events with which it is concerned. She has also provided a diagram which she has exhibited to that statement. In short, she says that she was clearing away plates, standing between two trolleys, facing one trolley with a second, known as a bain-marie trolley, behind her. She attempted to lower the tray of dirty plates onto runners within the first trolley which was in front of her but she says that the tray came off the runners so she tried to pull the tray back out again but in doing so, and unbeknownst to her, she caused waste food located in a receptacle on a tray lower down the trolley to fall onto the floor and she slipped on that food and felt her feet go from under her. She landed on the base of her spine and as she fell backwards she struck the base of the bain- marie trolley with the back of her head and neck. Her recollection was that she immediately felt as if it had jarred and she felt pain but that that pain was dwarfed by the pain in her lower back. She was unable to get up, and remained on the floor for some twenty minutes before she crawled out of the room and obtained assistance, her alarm not having functioned properly or indeed at all. She was taken to A & E.
10. She was challenged as to this account by reference to various contemporaneous or near contemporaneous documents which failed to record any reference to a neck injury. They include but are not limited to a Report of an Injury or Dangerous Occurrence Form ( page 906;) the A& E records ( page473 at 474) which is in these terms:

"Slipped over whilst at work at 17.40 onto hard surface. O/A c/o severe pain to coccyx, sacral area and radiating to left and right 0 head injury, 0 LOC" (interpreted as no head injury and no lost of consciousness).

11. At page 629 there is a letter dated 11^th May 2004 from A&E to the Claimant's GP in these terms:

"Your patient attended our A&E Department on Monday 10^th May 2004 at 6:16pm referred by: Self. Their presenting complaint was: - back injury. On examination I found: - Fall. No focal neurology. Investigations: diagnosis: sprain, buttocks. Disposal: allowed home."

In addition, the GP note for the 10^th May (bundle, page 478) contains the following:

"Slipped over at work, fell on hard surface on coccyx, sacral. No other injuries"

And at page 611 the following entry is to be found:

"Unspecified disorder of the coccyx fall ++"

12. Again there is no mention of any neck injury in the occupational health notes dated 12^th May 2004 (bundle, page 798); the reference being to back problems and injury to coccyx or in a report to the Health and Safety Executive dated the 13^th May 2004 (bundle, page 906).
13. The Claimant's explanation for the apparent absence of any reference to injury to the neck was that her main source of complaint was the lumbar spine from which she was in a great deal of pain and that was the focal point so far as she was concerned with regard to the early reports. She also made the point that so far as the A&E notes were concerned at the time she was vomiting and it was her husband who provided information.
14. In fact, by the 21^st May 2004 there is reference to injury to the neck. This is to be found in a physiotherapy note which is in these terms: "recent injury to back (fell at work) injury to coccyx but jarred entire back and involved neck" (bundle, page 833)

On the 18^th June 2004 the GP notes include the following reference:

"Having physio – trapped nerves in neck and lower back"

On the 24^th June 2004 the initial assessment by an osteopath includes a reference to the Claimant having presented with pain in her neck accompanied by occipito-frontal headaches (bundle, page 835).

15. The Defendant also prays-in-aid the absence of any reference to neck pain in the Claimant's Letter Before Action which was sent on the 1^st September 2004 (bundle, page 924) or indeed the Particulars of Claim (bundle, page 3) although to be fair to the Claimant there is a reference under Particulars of Injury to the Claimant having developed pain of the cervical spine shortly after the accident.
16. In my judgment it is fair to say that the Claimant's evidence as to the accident circumstances was clear, consistent and cogent and of course there was no direct evidence contradicting her account. Moreover, if in fact the Claimant did not suffer an injury to her neck, it is difficult to see why she should be complaining of symptoms to Occupational Health only eleven days post the accident and thereafter to her GP and to an Osteopath in circumstances where she says, and I accept, she was asymptomatic in the period immediately preceding the accident. To my mind, the absence of early reporting is eminently explicable, as indeed the Claimant sought to explain it, initially as a result of the pain she was in and her condition generally and the fact that overwhelmingly the main source of pain was in the lumbar spine and then by reference to the fact, accepted by both medical experts, that the insult to her lumbar spine was overwhelmingly the major element in her situation. I have no hesitation in concluding that the accident occurred in the way described by the Claimant and that, on the balance of probabilities, the Claimant did indeed suffer an injury to her neck on the 10^th May 2004.

Issue 2 - If she did damage her neck, is that damage causally connected with the symptoms subsequently related by her and if so to what extent?

17. The first issue to address on this aspect is the question of the Claimant's medical condition prior to the accident. The Claimant in her oral evidence repeatedly expressed the view that she did not believe that her pre-accident history of neck pain was significant. As a result she was taken through that history as revealed in her medical records and identified by Mr Marks in his first report dated 15^th November 2007 (page 178 at pages 182 and following) in some detail. During the course of that cross-examination it's fair to say, as counsel for the Defendant submitted, that the Claimant constantly appeared to downplay the significance of the entries; by way of example only the March 1993 reference was explained on the basis that it was a one-off, short-lived episode and resulted from one of numerous assaults by an ex-partner. The April 1997 entry was explained as the result of a frozen shoulder whilst the June/July 2001 entries were explained as being the result of the use of an inappropriate chair. The Claimant also sought to explain various references to neck problems recorded in 2002 as being the result of a wrist injury but this is at odds with the contents of the letter of 6^th September 2002 to be found in the supplementary bundle at page A18.
18. It is also clear that the Claimant also appeared to down-play the significance of her pre-accident history when she was seen by the two medical experts for the purposes of this litigation. In July 2007 she was seen and examined by Mr Kirkpatrick who recorded the following under the heading Past Medical History at page 168 in the bundle:

"(i) besides glandular fever and the wrist injury Mrs Lay denied any other relevant medical issues.

(ii) She had one episode of sciatica in May 2001, which required one week off work. This followed a long sitting episode at her desk. She did not suffer any recurrence.

(iii) There was a suggestion of mild scoliosis as a child for which she received a back support. There was no corrective surgery and the problem resolved itself."

19. Her explanation, when challenged on these issues, was that she told Mr Kirkpatrick about what she believed to be the significant issues; all that she felt was relevant.
20. When she saw Mr Marks on the 15^th November 2007 he recorded what was reported to him at page 181 in the bundle, under the heading Past Medical History as follows:

"She reports herself as otherwise fit and well. As noted previously Mrs Lay states that she developed rheumatoid arthritis since the accident. She confirmed that there was no family history of rheumatoid arthritis although her great grandmother suffered from polymyalgia rheumatica.

In 1996 (should be 1995) Mrs Lay had a road traffic accident in which she had a whiplash injury to her neck and this settled. She had scoliosis as a child and was under the car of Alan Gardner, consultant orthopaedic and spinal surgeon in Basildon. She wore a brace as did her sister. She had low back pain after delivery of her son. She is an ex-smoker of one year."

21. At a subsequent interview on the 5^th April 2012 Mr Marks has recorded under the heading Past Medical History the following:

"This remains unchanged from my previous report and Mrs Lay confirmed that she had no pre-accident history of neck pain prior to the accident. She is an ex-smoker."

22. When put to her in cross-examination, she did not recall it but when asked whether, if she did say that, it was incorrect, she answered that leading up to the accident she had had no neck pain. That is consistent with how she dealt with her neck history in various health questionnaires which she completed and copies of which are to be found in the bundle at pages 923, 789 and 778. She simply did not regard herself as having a constitutional neck condition.
23. Both the experts in their first joint statement (page 199 at page 200,) confirmed in their oral evidence after having heard the Claimant's evidence in connection with the various entries relating to neck pain, are agreed that:

"Both experts note that Mrs Lay had a significant past medical history and had had an adolescent idiopathic scoliosis for which she had received medical attention but no surgical treatment. She also had a pre-accident history of neck and low back pain which we believe was significant in the period leading up to the accident of 10^th May 2004."

24. I accept that the Claimant did in fact have a significant past medical history and in particular a history of neck as well as low back pain which would be regarded by those in the medical profession as significant, accepting as I do the evidence on this issue of both medical experts. That does not, however, mean that I should conclude, nor do I, that the Claimant, when addressing questions as to her pre-accident neck condition, was deliberately seeking to understate its significance. I entirely accept her evidence that she regarded the incidences of neck pain as referable to particular events in her life and not as constitutional in nature. This is all the more so in the light of the physically demanding nature of her employment. In the light of my assessment of her evidence and demeanour, I conclude that she gave her evidence on this, as on other issues, honestly and straightforwardly.
25. The next issue to address then is the nature and extent of the Claimant's neck symptoms and the medical evidence as to attributability. The Claimant's evidence as to her symptoms was to the effect that initially she suffered an ache as though she had jarred her neck, something which felt muscular. Thereafter in the next two to three days she felt muscle pain, a pain from her neck down to other parts of her spine, and the pain became more aggravating as the days went by but was nowhere near as painful as the pain being experienced in her lower back. She went to see an osteopath but, notwithstanding that input, she has continued to suffer symptoms ever since. In her second statement she recorded that her neck symptoms and condition generally had gradually deteriorated leading to regular spasms.
26. The Claimant relies on various entries in her osteopathic notes in support of her assertion that she continued to suffer accident related symptoms in her neck. These entries are to be found at pages 732 to 770 in the bundle which cover the period June 2004 to August 2005 and are helpfully summarised by Mr Marks in his second report at pages 238 to 240 and do indeed corroborate the Claimant's evidence of neck symptoms.
27. The Claimant also pointed to her subsequent involvement with Mr Shair, to whom she suggested she had given a history of her neck symptoms, and who had told her that they should concentrate on the lumbar spine and in particular reliance was placed on a letter from Mr Shair to the Claimant's GP dated 29^th March 2006 ( page 280) in which the following appears:

"Mrs Lay informed me that she has been experiencing neck pain for a long time, in fact since her accident. She informed me that this was reported initially but focus was placed on her lumbar spine, as it has been the major source of her pain and restricted mobility"

28. It is fair to record however that that is the only such reference by Mr Shair and it is ambiguous since it could equally be read as suggesting that what he was recording was that the Claimant had that day told him for the first time that she had been suffering neck symptoms which she had reported to others whose focus was her lumbar spine. Further it is to be noted that there is no documentary evidence recording Mr Shair's treatment priorities, if I may so describe them, nor any reference to any neck injury in his letter to the Claimant's solicitor dated 14^th December 2005 (bundle, page 274) or to the Claimant's insurers dated 13^th January 2006 (bundle, page 276).
29. The Defendant challenges the accuracy of the Claimant's evidence as to continuing symptoms ( if indeed there were any such symptoms) on the basis of what is revealed in the Claimant's medical notes highlighted by Mr Marks in his second report which, it is submitted, points to the level of symptoms having reverted to a background pre-accident state by July or August 2005, coupled with the absence of any reference to neck pain in various documents completed by the Claimant after that time.
30. Thus it is, at least, surprising that there is no reference to ongoing neck problems in the admission assent form completed by the Claimant in August 2005, a copy of which is at page 366 in the bundle, which the Claimant characterised as an oversight notwithstanding that she must have realised that accurate recording was very important in such a document and there is no reference to any disability caused by her neck symptoms in the incapacity benefits application form she completed in January 2006 (page 948) which she described as an updating exercise in respect of a previous form.
31. Counsel for the Claimant, by contrast, urges me to accept the Claimant's evidence as to continuity of symptoms and in so doing to reject the evidence of Mr Marks and to prefer the evidence of Mr Kirkpatrick. I now turn to consideration of that evidence.
32. Mr Kirkpatrick, having in his first report (bundle, page 176) ruled out the Claimant's neck complaint as having anything to do with the index accident, subsequently in the second joint report (bundle, page 258(1)) agreed with Mr Marks that if the Claimant's account of the occurrence of the neck injury were to be accepted (as I have) then:

"Both experts agree that if this is the case, Mrs Lay did suffer from a simple muscular ligamentous injury of her neck consistent with the mechanism of the injury.

Both experts have now seen the chiropractor/osteopath records which post-date her injury and have commented upon them in our respective reports. Both accept that in the aftermath of the injury Mrs Lay did receive osteopathic attention to her neck. Both do acknowledge that there was a degree of spinal complaint prior to the index accident. Her last was documented in December 2003 where she complained of some neck pain which was five months prior to the index accident.

Neither expert believes that the chiropractor records have significantly altered their respective views on the matter that there has been a period of post-accident neck pain.

Both experts agree that Mrs Lay did suffer from a soft-tissue injury to her neck as described above. Mr Marks believes that the likely timescale of relevant symptoms would have been an average of 14 months. Mr Kirkpatrick believes that this would lie between 12 and 24 months.

Both experts who have reviewed the pre-operative MRI scan of the neck indicate that to all sense and purposes the discs were normal and there was no sign of any degenerative process evident. Both experts did know that there was some loss of the normal cervical lordosis consistent with muscular spasm. Both experts confirm that she had pre-accident cervical symptoms. Both experts would have expected her to have recovered given the aforementioned findings on the MRI scan and the timescales that they have set out. There were no relevant clinical signs to demonstrate an adverse prognosis prior to the surgery on the cervical spine. We agree that she had relevant symptoms which would have given an indication of quanisity and recurrence.

Both experts would have expected that the effects of the index accident, in the absence of any surgery, would have been one of progressive improvement in the timescales discussed above. At the end of these respective periods the experts would have expected her baseline symptomology to have returned to normal. Mr Kirkpatrick believes this to be of a very low grade nature and largely postural in origin. Mr Marks agrees with this and refers to the general practitioner notes indicating that Mrs Lay would have relapsed again spontaneously in any respect."

I should, for the sake of completeness and because Counsel for the Claimant relies on what he says is a change in Mr Marks' position, evidenced by their first joint statement, make reference to the relevant contents of the first joint report (page 199 at page 201) made at a time (April 2008) when it is fair say that the focus was on the lumbar spine injury.

"Both experts therefore are not surprised that Mrs Lay's condition has apparently deteriorated since the surgery. They would state in joint agreement that they believe that in the absence of the surgery she would have recovered had she been treated in a persisting conservative manner although they feel her condition would have been somewhat aggravated they believe this would be no more than a period of 18-24 months."

33. It is apparent therefore that in respect of the second joint statement the extent of the experts disagreement is narrow but nevertheless significant on the facts of this case. It is common ground that the neck injury is a very minor element of the claim but the period of exacerbation is 12 to 24 months in the opinion of Mr Kirkpatrick and 12 to 16 months (with an average of 14 months) in the opinion of Mr Marks.
34. Counsel for the Defendant, in seeking to persuade me to prefer the evidence of Mr Marks, criticised Mr Kirkpatrick's change of opinion as to the cause of the Claimant's neck complaint without any apparently coherent reason for so doing, and for suggesting that he did not understand Mr Marks' opinion that continuing symptoms after 14 months were caused by the Claimant's pre-accident underlying condition which it was said did Mr Kirkpatrick no favours particularly as, at the time of his first report, he must have concluded that any symptoms, if not accident related, were the result of an underlying constitutional condition.
35. To my mind there really is nothing of substance in either criticism. It was and remains Mr Kirkpatrick's view that the neck symptoms were very low grade indeed but he conceded that with hindsight he might have downplayed the neck injuries since there was clearly a mechanism for the injury and the osteopath notes lend support to the proposition that there was an injury. In the early stages, the focus was overwhelmingly the lumbar spine condition and in the circumstances that was entirely understandable. As for the second point, that was in the context of the intervention of Mr Shair and his view that any constitutional neck symptoms would not have led her to undergo an operation and to my mind of no real significance.
36. I should add that Mr Marks was also critical of Mr Kirkpatrick's use of statistics compiled in respect of whiplash injuries suffered in RTAs although little turns on that criticism particularly in the light of the agreement of both experts in the first joint statement that the requisite range was 12 to 24 months, albeit primarily in the context of lumbar spine injury.
37. Counsel for the Claimant in turn sought to undermine confidence in Mr Marks' evidence in the light of what he characterised as a series of concessions which he submitted were not, as Mr Marks suggested in his oral evidence, inadvertent mistakes. In particular he pointed to the use of the words "degenerative" and "recurrence" rather than " constitutional" and "occurrence" in Mr Marks' second report (page 244). He also highlighted the failure of Mr Marks to take account of the Claimant's evidence as to continuity of symptoms; his reliance on his interpretation of the osteopath notes and the absence of any relevant entries in the Claimant's GP records without considering the Claimant's explanation for such omissions and his failure to take into account the involvement of Mr Shair in the Claimant's treatment and in particular his letter of March 2006 (page 280) as evidence of continuity of symptomology and what he characterised as Mr Marks having shifted his opinion on the period of exacerbation of symptoms from that identified in the first joint statement to which I have already referred.
38. To my mind however much, but by no means all, of the criticism of Mr Marks is misplaced. In particular there is nothing in the so called concessions made in respect of the second report. It is plain on a fair reading of Mr Marks' reports that he has never suggested that the Claimant suffered from a progressive condition. For example he accepted in his first report that MRI scanning demonstrated no significant degenerative change (page 197) and in the first joint report he accepted that the cervical MRI scan was essentially normal. Nor do I accept that Mr Marks subsequently shifted his position from that agreed with Mr Kirkpatrick in the first statement as to the period of exacerbation. It has to be recalled that at that stage Mr Kirkpatrick did not even attribute any cervical injury to the accident. It is plain that the focus of discussion was the lumbar spine insult and indeed that was the thrust of the evidence of both Mr Marks and Mr Kirkpatrick.
39. It is not clear whether Mr Marks had available to him the Claimant's second statement when he drafted his second report. Plainly it had been served on the Defendant's solicitors in May 2012, that is after Mr Marks' interview and examination of the Claimant which took place on the 5^th April 2012, but before he dictated his report (14^th June 2012) (see page 234 in the bundle). It is not recorded as being a document he had referred to and Mr Marks' recollection was that he had not seen it. That seems likely on the facts. In those circumstances, it is perhaps not surprising that he did not refer to the contents of that statement but confined his opinion to that which he could glean from the medical reports although, in my judgment, the contents of the statement should have , if in fact they were not, been brought to his attention and he should have been asked to revisit his opinion in the light of that evidence. In his oral evidence he stood by his written evidence, being unwilling to accept the submission of the substance of the Claimant's oral evidence in the light of what he had found or not found in the medical records, though he did concede that if the Claimant's evidence were to be accepted he would have to revise his opinion.
40. Should then the Claimant's evidence be accepted notwithstanding the contents of the medical and other records and the views of Mr Marks? On the balance of probabilities I conclude that it should. Her explanation for the absence of references to neck pain in the osteopath notes and the GP notes after July/August 2005 was entirely plausible given the involvement of Mr Shair, the fact that the lumbar spine injury had always been the main focus, and the concentration by Mr Shair on that injury which Mr Kirkpatrick suggested accorded with conventional surgical practice and indeed that she underwent disc replacement surgery in August 2005. In the circumstances the absence of reporting of continuing cervical symptoms is hardly surprising and does not suggest that any symptoms returned to a constitutional level. I accept the evidence of the Claimant as to the continuity of attributable symptoms and do not consider that her evidence is in any way undermined by the contents of the medical and other records in the circumstances of this case.
41. I accept and prefer the evidence of Mr Kirkpatrick as to the period of attributability and I conclude that the Claimant continued to suffer attributable symptoms throughout the period of 24 months from the index accident, there being no difference in the presentation of symptoms to suggest that they, at any time in that period, ceased to be trauma related and became constitutional in nature. It follows in my judgment that the answer to issue 2 therefore is that the damage was causally connected with the symptoms subsequently related by the Claimant for a period of 24 months post the accident.

Issue 3 - If the Claimant had not damaged her neck in the accident then what would have been her prognosis?

42. During the course of argument I sought to elucidate my reservations about this question and indicated that, in the absence of a contrary view being expressed by either party (which there was not,) I proposed not to deal with this question unless required to do so following delivery of my judgment on issues 1 and 2. I propose therefore to say no more about Issue 3 in this judgment.

Conclusion

43. I trust that Counsel will be able to agree and draft the terms of a suitable order to reflect the substance of this judgment.
44. I am grateful to both counsel for the clarity of their opening arguments and their submissions and for their assistance generally throughout this trial.