B3/2001/0043
Neutral Citation Number: [2001] EWCA Civ 1641
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TAUNTON COUNTY COURT
(Mr Walter Aylen QC)  
	Royal Courts of Justice
	Strand
	London WC2

	Thursday, 18th October 2001
B e f o r e :

LORD JUSTICE THORPE
and
SIR MARTIN NOURSE

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LESLEY MORGAN	Claimant/Respondent

-v-

JEREMY MILLETT		Defendant/Appellant

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Computer Aided Transcript of the Palantype Notes of
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Mr G Edwards (instructed by Messrs Clarke Willmott & Clarke, Bridgwater) appeared on behalf of the Appellant Defendant.
Mr J Counsell (instructed by Messrs Bevan Ashford, Taunton) appeared on behalf of the Respondent Claimant.

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J U D G M E N T
1.	LORD JUSTICE THORPE:In a road traffic accident on 30th July 1993 Leslie Morgan sustained a whiplash injury and in consequence was prevented from continuing her employment as a care assistant with the Somerset County Council. She suffered a number of other symptoms in the area of shoulders, right arm, upper cervical spine, lumbar spine and knee, which were all either treated or assessed forensically in the ensuing years, and she also suffered a depressive illness which was assessed psychiatrically. Her claim for damages was issued in June 1996, but did not come for trial until late in the year 2000, which of course was some seven and a half years after the essential event. 
2.	Although the accident happened in the West Country and proceedings were issued in the Taunton County Court, for various reasons the trial found its way to this building and Mr Walter Aylen QC, sitting as a deputy judge of the Queen's Bench Division, conducted the trial. He reserved his judgment, which resulted in an order in the claimant's favour in the sum of £45,814.41. 
3.	As he recorded at the outset of his judgment, the principal issue was capable of subdivision into two sub-issues. The first was the question of malingering and the second was the question of attribution of the claimed injuries to the accident. The defendants had taken a robust stance. They accepted that the claimant's injuries disabled her from employment for a period of some four months, but thereafter they asserted that her symptoms were exaggerated. They sought to fortify their case by reliance on video evidence garnered in 1998 and 1999, which seemed to demonstrate the claimant behaving in ordinary tasks without the slightest disability, inconvenience or pain. So the major issue in the case was the claimant's sincerity and credibility. On that issue she succeeded. The judge reached the conclusion that the whiplash injury which she had sustained was as significant as she asserted and that it prevented her from resuming employment until a date which the judge fixed as 30th July 1997, i.e. four years after the accident. He was equally persuaded as to the reality of her asserted depressive illness and he held an attributable psychiatric consequence up until the end of July 1998, namely the fifth anniversary of the accident. However, in relation to that he held: 
“... I do not find that such symptoms as were remaining would have prevented her from returning to work at the date I have set out earlier. The consequence is some enhancement of general damages but no effect on the special damages recoverable.” 
4.	The claimant had complained of symptoms in the area of the shoulder and neck and certainly they were to the fore by the summer of 1995, and in November 1995 she underwent an MRI investigation, which revealed “mild right-sided disc protrusion” at C.6/7, together with “minor tendinopathy” in the right shoulder. The judge held that such symptoms of which the claimant complained in the area of the back and shoulder were not attributable to the injuries sustained in the accident but were simply natural degenerative changes. 
5.	The overall figure awarded by the judge had of course a substantial element of special damages for lost earnings, which the judge did not have to quantify because counsel were well able to agree the maths. In relation to general damages he awarded her the sum of £16,500. Further, he awarded her the sum of £7,500 under the Smith v Manchester head, and the ultimate uplift came from small items of special damages which were agreed between the parties, together with interest. 
6.	An application for permission to appeal was lodged and three points were taken. The first point was that, since the natural degenerative changes would have prevented the claimant from work as a care assistant from the middle of 1995, it was unprincipled for the defendants to be condemned in damages beyond that date. The second point taken was that the Smith v Manchester award was unprincipled for related reasons. The third point was that the judge's award of general damages exceeded the discretionary bracket within which he was permitted to decide. The grant of permission was by Lord Justice Keene, who recognised that grounds 1 and 2 were arguable, but cast doubt upon the prospects of success on ground 3. That doubt is enhanced by oral argument this morning and we did not trouble Mr Counsell to respond to the attack on the quantum of general damages. So it remains to decide these two relatively short criticisms of the judgment of the deputy judge. 
7.	The manifestly careful judgment steers a delicate course between the extremes for which the parties had contended. Mr Counsell had pursued the bold case that the claimant's disabilities were all attributable, that they were continuing and, indeed, that they were permanent. Mr Edwards' bold case for the defendants I have already summarised. The judge, whilst accepting the claimant's overall sincerity, rejected her interpretation of the video evidence, holding that she was plainly fit and well as at that date. He explained quite carefully how he arrived at his crucial dates of 30th July 1997 and 30th July 1998 for the duration of the whiplash injury and the psychiatric injury. 
8.	Of course, there had not been much concentration on some of the boundary areas decided by the judge at trial in view of the extremity of the respective positions of the parties. But, as Mr Edwards emphasises, whilst striving for the grand victory which a finding that there were no consequences after November 1993 would have represented, he did not ignore a lesser outcome, specifically cross‑examining on how the shoulder injury would have impacted on the claimant's ability to work. During the course of his cross‑examination he very clearly put: 
“Do you agree with me that if you had got the shoulder problem which prevents you reaching or lifting with that arm that that is something which really would prevent you, just by itself, working as a carer?” 
9.	Although no audible answer is recorded, it is agreed between counsel that the witness answered in the affirmative. So the question was repeated: 
“If you had a bad shoulder which stopped you lifting and reaching?” 
10.	Again the answer was, “Yes”. Then the question was asked: 
“That of itself would be enough to prevent you working as a carer?”
11.	For the third time the answer was, “Yes”.
12.	Equally, Mr Edwards points to evidence from his expert, Dr Calin, who offered this opinion in the course of a long answer to a question put in re‑examination: 
“My belief is that there have been separate pathologies. There was the original soft tissue injury at the neck, but thereafter other areas took over. The shoulder particularly, and given her job it would be difficult to work with a damaged shoulder, and the low back and the other features we heard about.” 
13.	Mr Edwards did not ignore the opportunity presented by this evidence in his submissions. He is recorded as saying to the judge: 
“That being said, there is a second string to my bow in terms of employability, which is if you are not with me on my submissions about her ability to work, which I stated as my starting point, if she has been incapable of work, we say that is due to the unrelated shoulder pain.” 
14.	The judge said, “Yes”, and Mr Edwards continued: 
“And indeed to the lower back pains. The claimant herself said that the pain in the right shoulder alone has stopped her carrying out her work as a carer. She accepted that in evidence. If that is right on causation, which we say we are on the evidence, then the ability to work would have come to an end when it did in any event. Certainly, to underline the point, the lower back problems certainly would have cut in to prevent her doing that kind of work. The neck, if you find that was caused by the accident and if you find that the neck is related to the accident, it does not add any disability to that which you have already heard in employment terms. If you have a lower back problem, if you have a right shoulder problem, which she says causes her problems, it is not going to debar you from any particular type of employment to have a neck pain in addition. I do not mean to diminish it in that sense, but in terms of employment it makes no difference. So the claim is ill-founded simply on that basis alone. There is no additional or distinct disability in employment terms which the neck would warrant.” 
15.	Mr Counsell, in response, stresses that, whilst his client may have asserted the shoulder and the lower back areas as being very significant in the symptomology, there is no clear indication that the judge so found. The judge's findings in relation to the shoulder and the back are not entirely clear, but it is perfectly plain that he regarded both as being basically non-attributable. It must be borne in mind that, since he was accepting the sincerity of the claimant's evidence in relation to the whiplash injury, it would be hard to see how he would distinguish the accuracy of her account in relation to the non-attributable symptoms without pretty clear words. Then Mr Counsell says that all Mr Edwards put to her was that the shoulder injury would have prevented her from work as a care assistant. He did not put to her that it would have prevented her from all work. Therefore, there is a distinction between that concession in cross‑examination and the judge's finding that she was unfit for work generally until the fourth anniversary. 
16.	Mr Edwards, in reply, points out that during the course of his cross‑examination, when he had pointed out that the work of a care assistant was physically demanding, the claimant had answered: 
“But I love doing it. That is my type of job. I like looking after people.” 
17.	Then, in answer to the next question but one, she had said: 
“Yes, but that is my type of work. I'm not cut out to do anything else.” 
18.	Equally, in his judgment the deputy judge, in explaining the termination of the disability at 30th July 1997, had clearly related the disability to care assistant work. The bare finding at the end of 10.13 of the judgment is preceded by a passage in which he concentrated on her return to work in 1993, which was motivated by her love of the job and the fulfilment of caring for patients, and the judge said that such returns were indicative of her determination to get back to normal life as quickly as possible.
19.	So in the end I reach the conclusion that Mr Edwards' basic criticism, contained within ground 1, is substantiated. There seems to me to be an obvious flaw in an award against these defendants in relation to a period beyond the date at which natural degenerative changes, unattributable to the accident, prevented her from returning to the only work for which she was cut out. I would accordingly reduce the period during which special damages are recoverable for loss of earnings from four to two years. 
20.	For similar reasons, it seems to me difficult to sustain a Smith v Manchester award. Of course, the way the case was presented and argued resulted in neither counsel having made any suggestion that a Smith v Manchester award was appropriate. Each was going for higher targets. The judge's rationalisation is terse. All he said is this, at paragraph 12.3: 
“Although I have found that she should have returned to work in 1997, it seems to me that the consequential removal of the claimant from her established workplace and work during her forties has damaged her employability prospects although I have found that she should, by now, in mitigation of her damage, have returned to work.” 
21.	I find some fundamental difficulty in seeing how the Smith v Manchester award would be appropriate in a case where the non-attributable degenerative changes would have in any event prevented her from resuming her career. Furthermore, because of the way in which the case was run, there was no evidence to justify the premise that removal from the established workplace and work during her forties had damaged her employability. 
22.	Mr Counsell sought to extract such evidence from two rather slight passages in letters written by the jointly instructed psychiatrist, Dr Veasey, in answer to questions put by solicitors for the parties, but I cannot read the passages upon which Mr Counsell relies as beginning to bear the weight that he would place upon them. The question from the defendant's solicitors only asked: 
“Do you consider [the claimant] is fit for employment and if so specify the nature of the employment ... If you do consider she is fit for employment, when do you think she would have been fit for employment?”
23.	Then there was this qualification: 
“I would be grateful if you could confine your view to any restrictions on the labour market caused by her psychiatric symptoms.”
24.	I construe that whole paragraph as asking two specific questions to be answered in relation to psychiatric symptoms. Dr Veasey, in response, said no more than: 
“As regards employment, it is difficult to do what you are suggesting as clearly her pain and restrictions are causative of her disorder but her psychiatric disorders per se would not, in my view, preclude her from any kind of employment, though they would clearly prejudice her in the employment market place.” 
25.	Similar points can be made in relation to the question posed by the claimant's solicitors at page 198 of the bundle and the answer given at page 200. 
26.	So for those reasons I would allow this appeal and make those two adjustments to the component parts of the judge's award. 
27.	SIR MARTIN NOURSE: I agree and find that there is nothing which I can usefully add.
(Counsel then addressed their Lordships in relation to costs)
28.	LORD JUSTICE THORPE:In relation to the costs of this appeal, there are attractive arguments advanced on both sides in the unusual circumstance that the notice of application for permission was immediately preceded by a payment in of a sum which the judgment today demonstrates to have been insufficient. 
29.	My ultimate conclusion is that broad justice will be done by making no order in respect of the costs of the appeal, leaving each side to pay their own. I say that because it seems to me that there was a real obligation on these parties to resolve their differences once the Lord Justice granting permission had directed the case into the court's ADR scheme. At that stage the parties knew equally that the case was capable of settlement at some figure between £20,000 and £45,000, and in my opinion there was a clear obligation on both sides to explore that area. Perhaps the greater criticism must be directed at the respondent, whose bare rejection gave the appellants no indication at all as to how much more than the £20,000 was the necessary price of a consensual conclusion. 
30.	But any adjudication, in the circumstances, is necessarily broad based and, for my part, I would therefore say that there should be no order.
31.	SIR MARTIN NOURSE: I agree. 
Order: appeal allowed and judge's award adjusted accordingly; no order as to costs.