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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Denton Hall Legal Services & Ors v Fifield [2006] EWCA Civ 169 (08 March 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/169.html Cite as: [2006] EWCA Civ 169 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE REID QC
GUILDFORD COUNTY COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE JONATHAN PARKER
and
LORD JUSTICE WALL
____________________
DENTON HALL LEGAL SERVICES & ORS |
Appellants |
|
- and - |
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KATHRYN HILARY FIFIELD |
Respondent |
____________________
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Allan Gore QC and David Sanderson (instructed by Messrs Charles Russell LLP, Solicitors) for the Respondent
____________________
Crown Copyright ©
Lord Justice Wall :
Introduction
The issues in the case
(1) The first limb of the appeal: were the injuries work related?
"75. Thus by the end of their evidence, I was left with the position that it was common ground that, if there was a temporal association between the change of activities and the symptoms, on the balance of probabilities the change was the cause of the symptoms. Thus, if there, the big increase in work in late 1998 and / or in early 1999 and the first relevant attendance on her doctor was in February 1999, the increase in work was on balance likely to be the cause, and a build up of work (as opposed to a sudden increase) could achieve the same result.
76. Mrs. Fifield's case is that there is a close temporal relationship between the increase in workload and the development of the symptoms. Mrs. Fifield had had long standing symptoms in her arms which had not been sufficiently severe to take her to the GP between 1993 and 1999, though she had been taking some medication (presumably pain killers) at the time of her work station assessment. During 1998, her workload increased when Mr. Dearsley joined the Management Board and took over Chairmanship of the PAC (Dentons' Partnership Admissions Committee). Her symptoms increased somewhat. In January 1999 there was a significant increase in workload when the 1999 PAC round commenced and Mrs. Fifield was required to do all the PAC secretarial work in addition to her normal workload. She began to experience more serious symptoms which took her to the GP in mid-February 1999. The increased workload as a result of the PAC continued until March or April 1999, but the symptoms worsened in May and June 1999 and became chronic over the summer. The onset of the more serious symptoms in February 1999 and the deterioration in May and June 1999 therefore had a close temporal association to the significant increase in work over the period January to April 1999. The onset was during the period of increased workload and the deterioration was within 1 or 2 months of the conclusion of that period. The period of 3 to 4 months prior to December 1998 was not therefore the relevant period in the light of that history. (italics mine)
77. On this basis the balance of probabilities (subject to any question that the pain is the result of a somatoform disorder) must be that the condition is work related. I note that three doctors who saw her at the time all took the view at the wrist pains had arisen in consequence of her work .."
The developments of Mrs. Fifield's symptoms
"14. From about 1998, the Claimant slowly developed a build up of pain in her hands, mostly in her wrists. She noticed stiffness in the small joints of the hands, mostly in the morning and this caused some difficulty typing. The pain also moved up to her elbows and shoulders and eventually to her neck. The Claimant is right handed and the symptoms were worse on her right side.
15. The symptoms were intermittent, but the from the (sic) beginning of 1999 the pains became more severe and more frequent."
"Dr. Young. ? RSI (symbols indicating more in the right than the left) wrist uses mouse to type more when stops typing Mother OA."
"Thank you very much for seeing this patient who works as a secretary to a legal department in London and does a considerable amount of typing and uses her mouse for the computer. For about six months to one year she has been experiencing more and more pain in both wrists especially the right and she wonders whether she would have arepetitive
stress injury, interestingly when she stops working the pain tends to get worse."
"19. Dr Fingret took a detailed history. There was pain in the sides of both wrists, the right more than the left. The pains also shot up into the forearm on the radial side and into the thenar eminence (the base of the thumb). The symptoms were experienced mainly at work and could result from lifting boxes as well as keyboard work. The problem had become continuous, but disappeared after 2 days rest. "
"2.1 From about 1998 her workload gradually increased and she slowly developed a build up of pain in her hands, mostly in both wrists. Her hands never swelled but tended to ache after a long period of work in the office. She is right handed and the right hand was the most affected. She noted stiffness in the small joints of her hands, mostly in the early morning and this caused some difficulty in typing. The pain also moved up to her elbows and shoulders and eventually her neck. By then she was using a mouse a great deal at her workstation, using this with the right hand ..
2.5 Gradually the pressure of her work increased as the partner for whom she worked took on more responsibilities within the firm and in addition to her secretarial work, sometimes in the region of 50% was administration but this most involved the use of the keyboard as well. This was made even worse by 1999 when the managing partner's secretary went on maternity leave, and she took over additional administration.
2.6 By mid February she was experiencing quite severe pain in her wrists, particularly on the right side and visited her general practitioner, who referred her to Dr. Adam Young, consultant rheumatologist at St Albans City Hospital (sic)."
"Mrs. Fifield told me that her symptoms started in the early 1990s when she developed pain affecting both her wrists. She told me that this lasted a few weeks and she then became better. She said she saw her GP sometime and was treated with Ibuprofen. Mrs Fifield said she continued to have symptoms on and off through the 1990s with her wrists being sore, with a sharp feeling. She said the symptoms used to resolve themselves when she took pain killers. Mrs. Fifield said in late 1998 the symptoms seemed to be spreading more up the arms affecting her shoulder and her neck as well as spreading into her fingers. Mrs. Fifield said in early 1999 she went to see her GP who referred her to Dr. Young (Consultant Rheumatologist)."
"Mrs. Fifield seems to have developed non-specific musculo-skeletal symptoms affecting her arms and neck, over a period of several years, according to her history. This is noted in the medical records by the various people she has seen. The GP records suggest that the symptoms became bad enough to mention on a regular basis from February 1999 onwards. Before then Mrs. Fifield attended the GP on a very regular basis for a number of different problems, although there are musculo-skeletal symptoms mentioned in the records, these are not mentioned regularly. The records show that Mrs. Fifield has been examined by four rheumatologists, none of whom have identified any objective findings and simply record tenderness in various areas with differing movements of the neck and arms. Mrs. Fifield has had a number of treatments from her GP and courses of physiotherapy none of which have proved to be of any benefit. She was referred to a chronic pain management programme and it would appear that this was helpful in controlling the chronic paid that Mrs. Fifield perceives.
There is therefore no specific diagnosis to be made. Mrs. Fifield does not have any recognisable condition such as carpal tunnel syndrome, de Quervain's disease, tenosynovitis, arthritis, lateral epicondylitis, or any pathology in the shoulder. Mrs. Fifield has musculo-skeletal pain which has no identifiable cause.
I can see no reason why, from the medical records that I have read and from her description of the work she was undertaking detailed in the records, as to why her work should be considered as the cause for the development of these symptoms ..
In conclusion, my opinion is that Mrs. Fifield does not have any recognisable work related upper limb disorder. I can see no evidence that her work has caused her to develop any work related upper limb disorder."
"6. Mrs. Fifield has a long history of musculo-skeletal symptoms that stretch back from 1982 to the present time. If it is shown that Mrs. Fifield's work changed significantly in the 3-4 months leading up to the start of the symptoms in December 1998 then Dr. Seifert and Mr. Eckersley agree that on the balance of probabilities the work has caused the symptoms to develop. If, on the other hand, the work did not change during this period they both agree that the work is unlikely to have been the causative factor."
(a) Please explain why you have chosen the date of December 1998 as the date for the start of the symptoms. Please explain your choice of the date in the light of the medical records and / or the history obtained by each of you and set out in your reports.
(b) Please explain why you have specified a period of 3-4 months leading up to the start of the symptoms as the relevant period during which the court should consider whether Mrs. Fifield's symptoms changed significantly?
"We have both had the opportunity to review this case by re-reading our respective reports and the medical records.
(1a) The reason we both agreed on the date of December 1998 as the start of Mrs. Fifield's symptoms is that we noted a long history of musculoskeletal symptoms leading up to this time, but the deterioration in her symptoms appeared to occur in early 1999. In addition, Mr. Eckersley noted in the history Mrs. Fifield gave to him that her symptoms got worse in late 1998 and in the history taken by Dr. Seifert that it was about 1998 with a slow build up with aching in the hands and wrists. We both agree that as the symptoms appear to be worse in 1999 that if work was to be the causative factor then it would mean the symptoms deteriorated as a result of problems in late 1998.
(1b) We both agree that as musculoskeletal symptoms are common within the population that for a specific activity, whether this is work, leisure or an activity at home, to be a specific cause of a condition then there should be a temporal association between the development of those symptoms and the activity in question. We both agree that in our experience a period of three to four months is the maximum period of time for this temporal relationship to be certain. We therefore agree that this is the period of time that the court should consider when looking at whether Mrs. Fifield's work is the cause of her developing worsening symptoms in 1999."
"At that time, I also had a copy of her witness statement dated 27 March 2002. From the history I took and from my examination of the papers then before me, I concluded that her upper limb disorder had been caused by her work. On reflection, it was therefore inaccurate of me arbitrarily to agree a date with Mr. Eckersley of December 1998 as the start of Mrs. Fifield's symptoms, and to refer to a four month deterioration leading up to that date.
Accordingly, contrary to what has been included in the joint statement, I conclude that if Mrs. Fifield's witness statement dated 27 March 2002 is accepted, then, on the balance of probability her work was the cause of her developing her symptoms. Regrettably, before signing the joint statement of 14 July 2004 I did not properly check the wording of that document, which was prepared for me to sign by Mr. Eckersley following a pressured telephone discussion. I now wish to retract that statement as I dissent from the views drafted and expressed by Mr. Eckersley.
I appreciate my overriding duty is to the court and to provide the judge with my honest opinion without showing favour to any particular party or interest. I apologise to the court for the confusion that has arisen."
" .. the evidence is being used to fit the chronology, and it is simply not acceptable. If he has a different postulation to give, an opinion to give, then it should have been reduced to writing. I have allowed some latitude with my learned friend, but this is the second time I have had to object in the last ten minutes.
Judge Reid:
I think that is right. We are departing fairly substantially from what we should have heard, which is the case as set out. I must say I have got difficulties about allowing the expert evidence to be adjusted in this way at this late stage when the defendants have not had the chance firstly, of course there has been no opportunity for the two experts to meet together and the defendants have had no chance to get their experts to deal with the current variant on the claimant's medical case."
"I think the simplest course is to allow this to go on and see where we get to, but I have no doubt that a good deal is going to be said about the way in which the goal posts appear to be moving."
Counsel: That is how it got into your first joint statement.
Witness: Right.
Counsel: It was not just plucked out of the air. What if it was late 1998, what then is your opinion?
Witness: Well, she had symptoms in late 1998
Counsel: A deterioration of symptoms in late 1998.
Witness: Okay. We had stated that she had various problems with her tendons and so on that had got worse in 1998, and became even more of a problem in 1999.
Counsel: What if the change in her working practices did not occur until early 1999, the increase in workload?
Witness: It is difficult. I assume she was obviously beginning to feel symptoms, and when in 1999 her workload increased these symptoms became very much more prominent and much more obvious for her.
Counsel: But the history is late 1998.
Witness: Yes, but as I say, this is gradually increasing. Presumably she had had it for some years, aches and pain, which, as I said before, is quite common in secretaries. My secretary gets it all the time. And towards the end of 1998, this happened to be getting worse. She gets, I assume, much more work to do in 1999, and the thing blows up and becomes much more of a problem.
Counsel: I just want to know what your opinion is in this case.
Witness: As I said, my opinion is that she had discomfort in her joints and these had got worse as her workload increased.
Counsel: Let me ask you specifically about the sentence ..
"We both agreed that if the case is that the symptoms gradually developed over a longer period of time then work is not the causative factor for these symptoms".
Do you retract that sentence or not?
Witness: In this context, yes, I would retract that.
Counsel: How do you square that with your opinion that it is appropriate and proper to look for a temporal association between the symptoms and the activity in question?
Witness: There is always a temporal association between symptoms and activity. I do not think there is any contraindication to say that having retracted that particular sentence.
Counsel: I want to ask you why you retract that particular sentence?
Witness: In the light of further reading of this case I suppose it seemed appropriate to retract it.
Counsel: Why?
Witness: I cannot give you an answer to that.
Discussion
Counsel: Now, turning to the date, the date we know that she first presented at the general practitioner with symptoms is the 17th February 1999. If her work changed significantly over t he and for the continuum of the six weeks immediately before the 17th February 1999, do you accept that work in those circumstances is within the three to four month periods that you have postulated in that paragraph?
Witness: Yes, if that is the sole period of time but, as we have discussed before, there appears to be evidence that there were symptoms well before that.
Counsel: Not significant symptoms on your analysis because they did not take her to the general practitioner. Is that not right?
Witness: Certainly, she had not reported to her GP until February 1999.
Counsel: And what you record her as saying, and I am not going to dispute it because this may be what she said on that occasion, that in late 1998 the symptoms seemed to be spreading more up her arms into her shoulders and neck, as well as spreading into her fingers, and Mrs. Fifield said in early 1999 she went to see her GP who referred her to Dr. Young, consultant rheumatologist. Mrs. Fifield's history is that she did have pains, as we have heard, over a number of years, but that during 1998 these symptoms seemed to have got worse but not so much worse that they took her to the general practitioner, and over that time her work was increasing gradually. Now, would you accept that if her work was increasing somewhat during 1998 and her pains increased somewhat during 1998, there might at least be a connection between those two facts?
Witness: Yes. You can construct it precisely like that, and it is not an unreasonable thing to say.
Counsel: If the work then changes really quite significantly further at the beginning of 1999, so that she goes six weeks later to the general practitioner with a complaint of pain that extends back beyond the beginning of 1999, but is first serious enough to take her to the general practitioner on 17th February 1999, would you accept that if a work change was established during that period of time that that is, on the balance of probabilities, what took her to the GP on the 17th February?
Witness: Yes, I think that is a very reasonable proposition to put forward. Equally, if you are saying that the symptoms were gradually going to build up in any event then she would have seen her GP at some point in the future irrespective of that.
Counsel: Now, if she establishes to his Honour's satisfaction that there was a big increase in the level of work that she was doing from the beginning of 1999, and we know as a fact that she first presents to the doctor on the 17th February 1999, do you accept that that big increase in work is, on the balance of probabilities, what took her to the doctor on the 17th February?
Witness: Yes, I think the way you put it, I would totally agree with that.
Judge: At the end of the day it is for me to decide what the facts in reality were. We have got I think a considerable degree of common ground between the doctors as to where the balance of probabilities lie on any given set of facts.
Counsel: Your Honour, yes.
Judge: The problems that we have got are what no doubt will be said by the defendants as to the inconsistencies in the way in which the factual basis for the claimant's case has been put, and no doubt it is going to be said that there has been some opportunistic shading of the factual case, but that is something I am going to have to deal with. But how far apart are the medics really?
Counsel: I think, as a result of the concessions that Mr. Eckersley if they are concessions, but anyway as a result of the evidence that Mr. Eckersley has given this afternoon it seems that they are not
Judge: I am not sure I see anything in the way of new concessions, you know. I think this is what he had been saying all along.
"73. They (Dr Seifert and Mr. Eckersley) were therefore agreed as to the absence of any identifiable physical cause for the pain. Equally they were agreed as to the reality of the pain: she had chronic pain syndrome. Each of them in oral evidence accepted that if there was a significant change in her work activities in the period leading up to the development of the pain, then on the balance of probabilities it was that which took her to her GP. In the light of this agreement the debates over whether Mrs. Fifield fulfilled the diagnoses for De Quervain's Tenosynovitis or Lateral Epicondylitis and whether those conditions are caused by typing is academic. Dr. Seifert believes that those conditions were present and were caused by the typing. Mr. Eckersley accepts that typing can cause the onset of chronic upper limb pain and that work is the probable cause if there is a sufficiently close temporal association between a significant change in the work and the onset of the symptoms.
74. Each of them was prepared to accept that if there was a build up of work, there could be an aggravation of and change in the symptoms. They also accepted the reasonableness of linking a substantial increase in work with her pain if the increase preceded the pain."
"Further to our telephone conversation I confirm that the latest report we have received from the Occupational Therapist at Finsbury Medical Centre diagnoses a long standing work related upper limb disorder, the symptoms of which he feels will prove difficult to control. He confirms that you should not be considered for any role involving the use of a keyboard and in view of the fact that you experience pain with minimal activity at home, he does not recommend that you carry out any tasks of arepetitive
or manual nature.
In view of Dr Harvey's diagnosis, we feel the best option to consider now is a PHI claim on your behalf on the basis that we have no suitable vacant positions at present which do not involve the use of a keyboard or work of arepetitive
or manual nature."
"24. One of the oddities of the various histories recorded by the various doctors is that they appear, taken at face value, as being inconsistent. There are inconsistencies in the length of time the symptoms are said to have subsisted. There are differences as to the description of the work load and the nature of the work. In my judgment this is because the doctors were not concerned to extract a detailed story of what occurred in the same way as the parties have been in the course of these proceedings. The notes are in general very brief and it is impossible to know what questions were put to elicit the information as it is recorded."
The second issue: were there causative breaches of the relevant Regulations?
"32. Under the (DSE) Regulations, in the submission of counsel for Mrs. Fifield, Dentons should have carried out a suitable and sufficient analysis of her workstation and assessed the health and safety risks to which she was exposed in consequence of its use (Regulation 2(1)). There was a duty on them to have reduced the risks identified in consequence of the assessments to the lowest extent reasonably practicable (Regulation 2(3)). Further, Dentons should have planned Mrs. Fifield's activities at work such that her daily work on display screen equipment was periodically interrupted by such breach or changes of activity as to reduce her workload at that equipment (Regulation 4). There was also a duty on Dentons to have provided adequate health and safety training in the use of any workstation upon which she may have been required to work (Regulation 6).
33. Paragraph 19 of the Guidance to the Regulations draws attention to the dangers of using display screens: "Possible risks which have been associated with display screen equipment work are summarised at Annex B. The principal risks relate to physical (musculoskeletal) problems, visual fatigue and mental stress. These are not unique to display screen work nor an inevitable consequence of it, and indeed research shows that the risks of the individual user from typical display screen work is low. However, in display screen work as in other types of work, ill-health can result from poor work organisation, work environment, job design and posture and from inappropriate working methods".
The judge's findings on the Regulations
"39. Once staff had been trained, each work station was assessed in 1993. The form used on each occasions was a tick box form with room for comments at appropriate places. Mr. McAvoy appears to have gone through the form with Mrs. Fifield. The form of the entries suggests that he did his job conscientiously, so far as he could. He noted that a document holder was required, and that the typewriter was taking a lot of space but "until the nemux cabinet is moved it cannot go into another position + cable under the desk". Importantly he also made the note "Kate has been receiving medication on her wrists (drugs)".
40. When Mr McAvoy had completed the form he handed it in, probably to a Mr. Hagland. No-one told the personnel department anything about it. Indeed, the existence of the form only came to light at a late stage in these proceedings, after the defence and after the ergonomists' reports had been exchanged. Nothing was done, and (so far as the evidence goes) no one was told anything about Mrs. Fifield's reported wrist pains.
41. So far as can be seen from the evidence, the assessments were made, the forms filled in and filed and forgotten, after (at least in Mrs. Fifield's case) any physical requirements had been dealt with in that the nemux cabinet and the cabling were removed (as they were going to be anyway) and she was offered a document holder which she did not use because it was too big."
"44. On the evidence that was the limit of Dentons' efforts to comply with the Regulations. There was no re-assessment of workstations. An assessment would be carried out on a case by case basis if it was perceived to be necessary. Hence the 1999 assessment was carried out at the request of the personnel department after Mrs. Fifield's condition became a matter of serious concern."
"63. In my judgment, the risk assessment and Dentons' treatment of it was inadequate. Whilst Mr. McAvoy was no doubt perfectly adequately trained for dealing with the purely mechanical questions as to desk position and the like, I am wholly unpersuaded that he had any meaningful interchange with Mrs. Fifield on the questions under the heading of "Job design". He was not, I judge, in a position to discuss with her in any meaningful way the adequacy of opportunities for regular breaks from display screen use or the steps that could be taken to minimiserepetitive
or boring tasks, and eliminating peaks and troughs.
64. The impression I am left with is that the whole risk assessment exercise was regarded as an unfortunate waste of time with which Dentons were required to comply and the form filling was regarded as a tick box exercise and little more. That impression is reinforced by Dentons' treatment of the form when completed. It was not referred to personnel. Nothing was done in relation to the reference to wrist pain. The form was simply filed away and forgotten. This was clearly inconsistent with the Guidance which provides (rather obviously) that those conducting the assessment should have the ability to: "Make a clear record of the assessment and communicate the findings to those who need to take appropriate action". No doubt Mr McAvoy did what was required of him but that hardly constituted communicating with the personnel department who needed to know about the wrist pains.
65. Mrs. Fifield was not party to any meaningful training in order to participate in the assessment. Nor, on the evidence, was any real thought given to her work and how it was organised. The duty of the employer is to intervene and alter work practices if need be, not to rely on the employee, who will have other priorities and may not appreciate (in the absence of training) the importance of breaks and a varied routine, who may be distracted by day to day pressures and deadlines, and who may have become habituated to undesirable working practices.
66. I take the view that there was a breach of duty to Mrs. Fifield in failing to comply with the requirements of the DSE Regulations. I am further of the view that consequent on that breach of duty there was a breach of duty in respect of Regulation 5 of the MHSW Regulations, and that the inept way in which the risk assessment obligations were undertaken also gives rise to a claim in negligence.
67. In my judgment, despite the persuasive argument to the effect that compliance with the Regulations and an absence of negligence would have made no difference to the eventual outcome, Mrs. Fifield's working practices would have been materially altered if she had been properly trained and had risk assessments been performed competently and with proper frequency. On balance, the likelihood is that she would have ensured that her typing was spread throughout the working day and was not concentrated in the morning and early afternoon; she would have taken regular breaks from typing in every hour; she would have ensured that her breaks did not involve pressured manual tasks; she would have told Dentons of the intermittent symptoms she experienced during 1998; and the risk of injury from the increase in work load would have been identified and her workload would have been managed so as to reduce the quantity of typing and the ensuing document collation that was required. Further, in the knowledge of her wrist pains, it is more likely than not that other secretarial help would have been enlisted to deal with the PAC."
"88. On the balance of probabilities, taking account of all the evidence and the synchronicity of the onset of the major problems and the change in Mrs Fifield's workload, I am satisfied that the deterioration in Mrs Fifield's condition and the onset of the chronic symptoms would not have occurred but for (Dentons') breach of statutory duty and negligence."
Dentons' case on the Regulations
Provision of training
6. (1) Where a person
(a) is already a user on the date of coming into force of these Regulations; or
(b) is an employee who does not habitually use display screen equipment as a significant part of his normal work but is to become a user in the undertaking in which he is already employed, his employer shall ensure that he is provided with adequate health and safety training in the use of any workstation in that undertaking upon which he may be required to work is substantially modified.
(2) Every employer shall ensure that each user in his undertaking is provided with adequate health and safety training whenever the organisation of any workstation in that undertaking upon which he may be required to work is substantially modified.
Analysis of work stations
2 (1) Every employer shall perform a suitable and sufficient analysis of those workstations which
(a) (regardless of who has provided them) are used for the purposes of his undertaking by users; or
(b) have been provided by him and are used for the purposes of his undertaking by operators,
For the purpose of assessing the health and safety risks to which those persons are exposed in consequence of that use.
(2) Any assessment made by an employer in pursuance of paragraph (1) shall be reviewed by him if
(a) there is reason to suspect that it is no longer valid; or
(b) there has been a significant change in the matters to which it relates;
And where as a result of any such review changes to an assessment are required, the employer concerned shall make them.
(3) The employer shall reduce the risks identified in consequence of an assessment to the lowest extent reasonably practicable.
Daily Work Routine of users
"4. Every employer shall so plan the activities of users at work in his undertaking that their daily work on display screen equipment is periodically interrupted by such breaks or changes of activity as reduce their workload at that equipment."
"Further, Mrs. Fifield gave oral evidence in cross examination that: (a) she knew whatrepetitive strain injury was; she knew it was possible that keyboard work might cause pain; that she knew that she should report any problems about her computer (and her use of it); she knew that she should take breaks from prolonged periods of keyboard work. In light of these concessions (covering as they did many of the issues the statutory Guidance states should be covered in training, and in light of the agreement at trial that Mrs. Fifield had been provided with a booklet ("You & Your Workstation") which gave appropriate health and safety information on all relevant matters, the judge should have found that Mrs. Fifield had indeed received training, alternatively, that any failure to provide training was immaterial."
Conclusion
"This appeal was prosecuted throughout by the employers' liability insurers of Dentons, and not by Dentons themselves, who had no involvement in the appeal process. Thus Dentons' insurers made the decisions (i) to seek permission to appeal; (ii) to pursue the appeal once permission was granted; and (iii) on legal advice as to the manner in which the appeal was pursued thereafter."
The second was that since I had recognised their right to prosecute the appeal pursuant to the permission granted by Clarke LJ it was unfair of me to designate Dentons' conduct of the proceedings as distasteful.
Lord Justice Jonathan Parker
Lord Justice Buxton
"neither admitted nor denied, as the Defendant has no knowledge of the matters pleaded therein and the Claimant is put to strict proof."
That may well have been all that the Defendant could sensibly say before disclosure of the medical records, and before he had in his hand Mr Eckersley's report, of which as we have seen so much was made in this appeal. But it was unsatisfactory for the pleading never to be revisited before the trial, when the Defendant by that time knew that his position was not that he neither admitted nor denied §15 of the Claim; but, rather, that he would advance a positive case that §15 was unreliable or untrue on the basis of statements inconsistent with it made by the person on whose instructions the paragraph had been drawn.