Case No: QBENF 99/0985
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD (Mitchell J.)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 18 April 2000

B e f o r e :

LORD JUSTICE STUART-SMITH
LORD JUSTICE ROBERT WALKER

	christopher david hossack		Appellant	
	- and -		
	MINISTRY OF DEFENCE	Respondent	

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(Transcript of the Handed Down Judgment of
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Michael Curwen (instructed by  Messrs Samuel Phillips & Co. for the Appellant)
Robert Jay QC (instructed by the Treasury Solicitors for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Stuart-Smith:
1.	This is an appeal from a judgment of Mr Justice Mitchell given on 31 March 1999 whereby he awarded the Claimant the sum of £5,525 by way of damages and interest for personal injury caused by the Defendant’s negligence.  The Claimant appeals, contending that he should have been awarded £100,000.

2.	The Claimant joined the Royal Regiment of Fusiliers on 5 June 1985.  Apart from one incident of tibial pain in July 1985 he was symptom free until June 1988, when he complained of a two month history of pain in both shins.  This had come about because in March of that year he had joined the Regimental Boxing Team which intensified the Claimant’s training, so that he was running an extra 15-20 miles a week on top of his ordinary training, and this was often carried out in combat high boots.  Between October 1988 and January 1989 the Claimant’s lower leg problems were investigated by Army doctors, culminating in Lt. Col. Ismaili’s opinion that the most likely cause of pain was ‘shin splints’, and that the Claimant should be downgraded if pain was still present on exercise.  Unfortunately shin splints is not a diagnosis and is a generic term which could cover a number of conditions.

3.	In March 1989 the Claimant was transferred to Germany.  He remained on light duties for a time, but by November that year he was back on normal duties and certified fit to box.  But by March 1990 the problems with the lower legs had recurred.  In May 1990 he was referred for an orthopaedic opinion; but he was not seen by a specialist before his unit returned to the UK in December that year.  Thereafter he was occasionally seen by medical officers but nothing other than palliative treatment was recommended.

4.	In March 1992 the Claimant was seen by Lt. Col. Johnson who placed him on permanent light duties.  In August he was seen by Dr Akasha, an orthopaedic registrar, who diagnosed ‘compartment syndrome’ and excused him from wearing combat high boots.  The diagnosis of ‘compartment syndrome’ was wrong.  Finally the Claimant was seen by Group Captain Ward between October 1992 and June 1993, who did not make any precise diagnosis of the problem.  On 23 July 1993 the Group Captain performed a surgical procedure called periosteal stripping of both tibia.  Unfortunately the Claimant’s condition deteriorated and he was honourably discharged following a medical board on 5 September 1994.

5.	The condition from which the Claimant was suffering prior to the operation was medial tibial syndrome.  This condition is caused by excessive running on a hard surface.  Those with flat (pronated) feet, as was the Claimant, tend to be vulnerable to it.  It is a comparatively rare condition.  It can be treated conservatively with an orthosis (support for the foot), rest and physiotherapy.  But many cases do not respond to this treatment.  If the symptoms last for 6 to 9 months they become chronic.  The patient will suffer pain in the shins on taking excessive exercise.  The condition is not caused by wearing combat high boots, but because they have a hard sole, these boots are likely to bring on the pain sooner, for example after running a mile, rather than in trainers where the pain may not come on for two miles.  The condition does  not get worse; but the patient’s activities are limited by pain, and he is obviously not fit to carry out duties as an infantryman.

6.	If conservative treatment fails, the only remedy is a periosteal stripping operation, such as was carried out by Group Captain Ward.  The operation may not be successful in relieving the condition, in which case nothing can be done, and the patient will have to avoid all strenuous exercise and lead a sedentary life.  But the operation cannot make the condition worse and, apart from one which did not materialise here, there are no complications.

7.	When the Claimant came to be examined for the purpose of obtaining a medical report to further his claim, Mr Challis, the orthopaedic surgeon advising him, concluded that he was not suffering from medial tibial syndrome, but chronic posterior tibial tendonitis, which is a quite different condition.  It was this which was causing the very severe disability from which the Claimant was suffering, such that he could not walk on the flat for more than 200 yards; he had great difficulty in driving and his employment was affected.

8.	The Defendants were advised by Mr Allen, an orthopaedic surgeon who was uniquely qualified to give evidence on the Claimant’s condition since he was one of the few experts in the country who specialised in this field of medicine.  He greatly impressed the judge, who preferred Mr Allen’s evidence to that of Mr Challis.  This no doubt accounts for the fact that the Claimant’s principal case as presented to the judge failed.  Mr Allen agreed that the Claimant’s present condition was due to posterior tibial tendonitis; but he also found some residual medial tibial syndrome, which presumably the operation had not cured.

9.	The Claimant’s case fell under three heads:-
(i)  That the Defendants were negligent in requiring him to run in combat high boots; this was both on the basis that such boots were generally inappropriate, and on the grounds that the Claimant’s leg problems meant that he should not have been running in such boots.  This case the judge rejected.

(ii)  That there was culpable delay in referring the Claimant for an orthopaedic opinion with the result that the decision to downgrade the Claimant was not taken when it should have been in about 1991.  As a consequence of this the Claimant continued to train.  This the judge accepted.

(iii)  Negligence in relation to the operation itself.  This the judge rejected.

There is no appeal from the judge’s findings on (i) and (iii).

10.	The Claimant’s case is that the deterioration in his condition following the operation in July 1993 and his present state was caused by the Defendant’s negligent failure to downgrade him in 1991, irrespective of whether (a) the operation was negligently conducted or (b) the operation caused any further deterioration.

11.	The judge’s findings are as follows:-
(i)  The Defendants were negligent in failing to ensure that Mr Hossack had a timely appointment with an orthopaedic specialist.

(ii)  The foreseeable consequence of this was the postponement of the decision as to the Claimant’s future in the Army.

(iii)  If that decision had been taken when it should have been, probably by March 1991 at the latest, he would have been downgraded and consequently would have left the Army.

(iv)  He would not have been offered an operation at that time, because it was not widely known about.

	(v)  The Claimant’s condition was chronic by March 1990; it was not thereafter 	made any worse.

(vi)  The operation was the appropriate treatment in July 1993 for the Claimant’s then chronic condition.  It was not negligently conducted.  It was not necessitated by any deterioration in the Claimant’s condition as a result of delay in taking any decision to downgrade him.

(vii)  The operation was not the reasonably foreseeable consequence of the failure to refer or downgrade him.

(viii)  The Claimant had not established that his current worsened condition was attributable either to the operation or to the aftercare.

(ix)  In the result the Defendants were liable to compensate the Claimant for such pain and suffering that resulted from the postponement of the decision to downgrade him leading to his discharge from the Army; this was the agreed figure of £5,525.  They were not liable for the additional £100,000, which was the agreed figure if his present condition was caused by the Defendant’s negligence.

12.	Mr Curwen has presented the Claimant’s appeal in two ways.  First he submits that the judge’s findings, set out in paragraph 11(i)-(iv), of themselves entitle the Claimant to the additional damages.  Had the Claimant been downgraded in 1991, he would not have had the operation, he would have led a sedentary life and would not now be suffering from the condition which gives rise to his disability, and that as I understand the submission, is irrespective of whether the operation or aftercare caused that condition.  I cannot accept this submission.  It is the ‘But for’ submission, exemplified by Lord Hoffmann’s well known example of the mountaineer in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191.  At p213D he said:

"A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee.  He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit.  The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee.  He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

On the Court of Appeal’s principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which would not have occurred if he had been given correct information about the knee.  He would not have gone on the expedition and would have suffered no injury.  On what I have suggested is the more usual principle, the doctor is not liable.  The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct."

It should be noted that the reference in the last sentence to the advice being correct must mean that if in truth there was nothing wrong with the mountaineer’s knee.  The position would have been different if the accident had been caused by a failure of the knee, at least if the mountaineer had made it plain to the doctor that the reason he was seeking the check-up was because he was going mountaineering.

13.	There must be a causal connection between the Claimant’s present condition and the failure to investigate other than simply that it provided the opportunity for the Claimant to develop that condition, whether as a result of the operation or otherwise.

14.	In the second way in which Mr Curwen puts the case he seeks to bridge this gap.  He submits first that the operation flowed from, which I think means, was caused by, the failure to downgrade; secondly that the operation was a reasonably foreseeable consequence of the negligent failure to downgrade; thirdly that the operation, or the aftercare necessitated by the operation, caused the tendonitis.  In my judgment the second step is unnecessary and confuses the test for liability and remoteness of damage, with the question of causation.  In this respect the judge’s finding which I have set out in paragraph 11(vii) was unnecessary.

15.	The question of causation has to be considered in the light of the scope of the duty owed (see for example per Lord Hoffmann in the South Australian Asset Management case at p212).  The duty found by the judge was to refer the Claimant earlier than the Defendant did for an orthopaedic specialist opinion.  It was breach of that  duty which led to delayed decision as to his future.  Once the scope of the duty is defined it is often helpful when considering causation to ask the question, why?  Why did the Claimant suffer the loss or injury which he sustained?  If one asks in Lord Hoffmann’s example, why did the mountaineer fall?, the answer may be because he was drunk, pushed, overcome by an avalanche or simply, I do not know.  If so, there is no causal link established to the negligent advice that he was fit to climb.  But if the answer is that he fell when his knee gave way because he was attempting a climb when he would not have done if he had been told he was not fit, he will recover against the doctor. 

16.	Delayed diagnosis and treatment can lead to additional disability.  It is well known for example that delay in diagnosis and treatment of a dislocated shoulder can cause irremedial damage to the brachial plexus, which would not have occurred if the dislocation had been promptly reduced.  Culpable failure to diagnose and treat may involve deterioration of the condition so that an operation, which with prompt treatment is unnecessary, has to be performed.  If the operation is unsuccessful, then the resulting condition insofar as it is worsened by the deterioration is caused by the breach of duty.  Likewise, if the delay has prejudiced the chance of a successful operation.  But in such a case the damages may have to be discounted on the basis that the operation might have been unsuccessful even if performed timeously.  The answer to the question, why is the Claimant’s condition so bad in these examples?, is because the delay in treatment made the operation necessary and operations are not always successful, or the delay prejudiced the chances of a successful operation.  

17.	Mr Curwen sought to show, by reference to the medical records that throughout the period from early 1991 until the operation, the Claimant was complaining of a deteriorating condition; and that had it not been for this the operation would not have been undertaken.  This, he argues, enables him to make good his first proposition.  But there is a clear finding, that whatever the Claimant’s perception, his condition was not made worse by the delay.  The operation was the appropriate treatment for the Claimant’s medial tibial syndrome, which was already chronic by March 1990.  If one asks the question, why did the Claimant have the operation, the answer is not because of the Defendant’s delay in referral, but because of the need to treat the condition, failing which the Claimant would have to leave the Army, something he was most reluctant to do.  By July 1993 the Army surgeons had learnt of the operation, and although the judge found that Group Captain Ward had not made a diagnosis of medial tibial syndrome, he performed the correct treatment.

18.	So far as Mr Curwen’s third proposition is concerned, he is faced with the judge’s finding of fact (set out in paragraph 11(viii)) that neither the operation nor the aftercare caused the tendonitis.  Mr Curwen does not seek to challenge the conclusion that the operation itself did not cause the problem.  But he submits that the judge was wrong to find that the aftercare did not either.

19.	As so often happens when a Claimant’s main case (in this instance the unsuitability of combat high boots and the inappropriateness of the operation) collapses, a glimmer of hope is perceived while the case develops, which counsel seeks to build on.  There was no pleading that the aftercare was negligent, so it had never been an issue in the case.  Mr Challis had never dealt with the point.  It was his thesis that the Claimant had suffered tendonitis all along and the operation was inappropriate.  That was rejected.  It was not until Mr Allen gave evidence that the question was raised as to what caused the tendonitis.  It seems to have been raised by the judge (176).  Mr Curwen cross-examined Mr Allen and sought to press him into saying that the most likely explanation, having regard to the close temporal onset of the deterioration to the operation, was the absence of physiotherapy in aftercare, with the result that the Claimant walked incorrectly and this set up the tendonitis.  Mr Allen accepted that this was a possible explanation.  But he insisted that there were others, and he could not express an opinion without doing further extensive investigations.

20.	Mr Curwen submitted that as there is no positive evidence in the medical records that Mr Hossack received physiotherapy and, in particular, help to walk correctly after the operation, it should be assumed that he did not and this is the most likely explanation on balance of probability.  He further submits that Mr Allen was not explicit as to what causes there could be other than chronic pain after an operation or a psychogenic condition.  There is a temptation to accede to Mr Curwen’s submission.  But I do not think we should do so, however much sympathy one must have with Mr Hossack’s predicament.  Since it was not in issue, the question of whether he received physiotherapy and, if so, what it consisted of, was never investigated either with the Army medical services or for that matter with Mr Hossack himself.  Although the close temporal connection between the operation and onset of deterioration may logically suggest to a layman that the two are connected, logic is not always a sure guide in medicine.  Mr Allen’s considered view was fairly summarised by the judge in the following passage at p230:

"MR. JUSTICE MITCHELL:  (To the witness):  As I understand it, now we have looked for so long at his state before the operation, the operation and his state since it, although you acknowledge the logic of the argument that because of the proximity of his deterioration to the operation itself logically there would appear to be a connection you say that his condition is, as yet, uninvestigated and therefore, in spite of the logic, you are not prepared to say that it is likely that his current condition is referable either to the operation or to the post-operative care? 

A.  No, I can’t say that.

Q.  You cannot say it is likely?

A.  No.

Q.  It is possible?

A.  It is a possibility and logistically one naturally assumes that, but I cannot......mean, there are so many different possibilities available and once the diagnosis has been made, one then has to look at why that particular.....

Q.  Yes, you come to your assessment of likelihood after you have got the full picture.

A.  Yes

Q.  But until you have got the full picture you cannot say so?

A.  I cannot."

21.	For these reasons I consider that the judge was right to hold that the Claimant had not established, on balance of probability, that the tendonitis was caused by the operation or the aftercare.  Again, if one asks the question why the Claimant suffered the tendonitis, was it because of the delay in referral and downgrading?, the answer is no.  Was it the result of negligent aftercare?, the judge’s answer is, I do not know.  In these circumstances the necessary causation is not established.  

22.	I would dismiss the appeal.

  

Lord Justice Robert walker: I agree

Order: Appeal dismissed.  A minute of order lodged with the court.
(Order does not form part of the approved judgment)