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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kenth v Heimdale Hotel Investments Ltd  EWCA Civ 1283 (3 July 2001)
Cite as:  EWCA Civ 1283
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR LEIGHTON-WILLIAMS QC
Tuesday, 3rd July 2001
B e f o r e :
LORD JUSTICE LAWS
SIR ANTHONY EVANS
|SURINDER PAL KAUR KENTH|
|HEIMDALE HOTEL INVESTMENTS LIMITED|
Smith Bernal Reporting Limited,
180 Fleet Street,
London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR F BURTON QC and MISS C PECK (instructed by Vizards, Staples and Bannisters, London WC1R 4LL) appeared on behalf of the Defendant.
Crown Copyright ©
"In law the Learned Deputy Judge was only entitled so to limit the Appellant's claim if the chances that she would have avoided a similar physical and psychiatric outcome were so small or insignificant that they could be entirely discounted."
"... to approach the case as the learned Deputy Judge did by way of a 'cut off' date (in this case five years) was wrong unless the evidence justified the conclusion that similar physical and psychiatric consequences were virtually certain as opposed to merely more likely than not within that time."
"It was common ground that the claimant was making beds in the course of which she would have to move the beds which were on carpet. In the room she was cleaning at the time, the beds had no castors and therefore extra force was needed to move them."
"In evidence, which Mrs Kenth gave via an interpreter, she said that she had been on her knees as she had been instructed, pushing the bed. She could not move it and was going to leave it. Then she lost her balance and her legs twisted under her. Her back struck the video and TV behind her in the middle, just above the lower back, higher than the lower back. Her legs moved under her. Her legs twisted under her body and both her legs were under her back. She went to get up but could not. She lost balance because she had used force against the bed. Her legs were under her bottom but she had not fallen sideways. She just stayed in the same position and could not move her legs from under her. As she was trying to get up, she suddenly went back. She had suddenly gone back quite hard.
She made clear in evidence that she did not feel pain before anyone else came along to help her."
"... I consider that the account she gave in evidence is likely to be the most accurate and it is certainly the one that is most consistent with the other accounts she has given. She was very clear she had no pain until after she had struck the video/television unit. She did not have pain on pushing the bed, nor, at the moment she struck the television, but when the first aid people were attempting to get her legs from under her.
8C the evidence, therefore, the cause of the disc protrusion she undoubtedly suffered could have been the forceful pushing of the bed or awkward twisting as she over-balanced and possibly striking the television as she fell back against it.
8F Precisely what happened is relevant, however, when it comes to assessing the pre-accident state of her back. It is common ground that for a disc to prolapse it must be degenerate. Thus the argument goes, the more degenerate the disc, the greater the chance of a prolapse when the disc is subjected to minor forces. In other words, it does not need great force to cause the prolapse.
This is a point which Mr Burton seizes for the defendants. He says that on any showing, this was not a dramatic accident and not one where the claimant's back would have been subjected to significant stresses.
9C He says the fact that such a significant injury resulted from such simple activity demonstrates how vulnerable her back in fact was and did not bode well for her future employment, especially given the type of work she did as a chambermaid. Thus he instances the 1991 incident as an earlier example of her vulnerability to low back problems manifesting themselves.
It may be convenient at this stage to deal with the 1991 accident."
"...the 1991 incident was an incident very similar to that which she sustained on the occasion of this accident. I am satisfied that the 1991 incident did involve an injury to her lower back and it was a precursor for what happened in January 1993. I find that what happened is likely to have been what is recorded at the time in the GP's notes, namely she was pushing a bed and felt pain in her lower back on the right side and that her right leg was involved. According to her statement, the bed she was pushing on that occasion had castors on it. If so, then the effort involved is likely to have been less that on the occasion of her accident. The 1991 accident demonstrated the vulnerability of her lower back to injury."
"I am satisfied that the claimant did recover from the November 1991 incident, but at the same time I am satisfied that after that date, and if not before it, an underlying vulnerability to further injury was present in the lumbar spine."
"She leads a most unsatisfactory life. She suffers from back pain, pain in the right leg and many other aches and pains, she as in the shoulders and the neck. She has, she said, good days and bad days. But she spends most of her days in bed or sitting down. She rarely goes out, save to a supermarket with her son. Her son said she sees one friend. She does not associate with other Indians, as she did before the accident. She has difficulty in walking. At most it seems she can walk about 50 yards. When she attended Dr Strachan [the orthopaedic expert who gave evidence on her behalf] he assesses that she was able to walk that distance. She has a wheelchair but does not use it at home. The extent to which she uses it out of the home is not entirely clear.
When she came to Court she gave evidence sitting in an easy chair which was specially brought for her. She has a host of medical problems. She is, as indicated, now grossly overweight, her weight having close to doubled since the time of her accident. She is troubled with her knees, where she says she has arthritis. She bandages them. Mr Strachan says there is some crepitus there but it is not, as he sees it, serious. No one has taken any X-rays, as far as I aware, of her knees.
It is questionable whether she has a cardiac problem. Investigations have been negative (happily) but the GP still prescribes her tablets for angina. She suffered for some years with menstrual problems, as the GP's note confirm. In July 1998 she underwent a hysterectomy, clearly not related to this accident. She said in evidence that she had been told she had cancer. That seems to me unlikely, although it is possible that she may have been told that there was a risk of cancer if she did not undergo a hysterotomy. She is, at the very least, desperately unhappy. She is very concerned about her plight and also concerned about the plight of her children, whose lives, she says, have been blighted by having to care for her.
It is against this background that the consequences of the accident have to be considered."
"What I have to decide on this evidence is whether there are continuing organically derived root signs and symptoms here. The majority of those who considered the issue, whether as treating doctors or for the purposes of providing opinions in this case, are of the view that there is no convincing evidence of a continuing nerve root problem. Mr Strachan in this respect is on his own and I am not convinced that he is right that there are adhesions present in this case causing the claimant continuing disability. It is a theory but on the evidence I am not satisfied that it is more than that. He himself was careful to point out that the scans were by no means unequivocal on these matters.
I am satisfied that there is no neuroma present. Mr Milner said it would show on an MRI and that evidence has not been contradicted."
"A central issue in this case is what would have happened had the claimant not had this accident. Would she at some time have developed a back condition comparable to that which she now has and would the other consequences which have affected her have likely occurred in any event?"
"First, the fact that the disc did prolapse, so that if there was degeneration there, it manifested itself. Second, the fact that in November 1991 the claimant had, as I conclude, near identical symptoms involving the right-hand side of the back. That I am satisfied was a significant episode. Third, the type of work that the claimant did, which inevitably would impose some strains on her lumbar spine. Fourth, the fact that it occurred on this occasion when, on the face of it, she did not impose any significantly excessive strain on her lumbar spine. Fifth, the severity of the injury on this occasion with organic signs and symptoms lasting for up to three years, despite the fact that there was obvious degeneration in the spine and the disc itself was not obviously degenerate. Sixth, the comparatively young age at which the claimant first had a low back problem. In 1991 she was about 34 years old, or younger if one looks at the alternative date of birth she has put forward."
"mild degenerative changes in her knees may have shortened her working life as a chambermaid to the age of 55."
"I have no doubt that Mrs Kenth had a degenerative disc, and, in view of the type of work she was carrying out at the time the alleged incident occurred, I think it is very unlikely that she would have continued with that work for very much longer – and would, in all probability, have had to have given it up within a year, and most probably six months, even if this incident had not occurred.
It is also noted that this lady is extremely obese, weighing 13 st 4 1bs pounds and only being 5'3 in height; has developed osteoarthitis in her knees, and appears to have subsequent cardiac problems. None of these can be related to the accident, and would have been further factors in terminating her employment as a chambermaid."
"Mr Millner thinks that even without the accident she would not have continued her work as a chambermaid beyond another year from the time the index incident occurred."
"Even had the index accident not occurred, it is likely that the progression of her underlying spinal degenerative condition, combined with her knee osteoarthritis and her subsequent obesity, would have prevented her from continuing her work as a chambermaid. We agree that it is unlikely that she would have been able to continue work as a chambermaid for longer than five years from the time of the index accident, even had the index accident not occurred."
"Q. And you pose a period of what the lawyers call 'acceleration' of about six months to a year. Is there anything that you have since subsequently read or seen or through discussions that you have entered into which has led you to alter your opinion?
"A. No. I think about a year, as far as any organic problems are concerned, would be the acceleration factor.
THE JUDGE: What is the basis for choosing one year?
A. The fact that she had had a significant problem before in 1991. There are other incidents of her taking time off work for back problems prior to 1993."
"What I am saying is that overall the condition of her back, because we now know that she does not have this prolapse, overall the progression of the problems with her back would have been such that I think her problems, particularly as far as employment is concerned, in a job where I understand she did have to move beds, but with the change in her back and the fact that she reduced the disc in what would appear to be a relatively minor injury, leads me to think that she would have inevitably had a similar back problem within a year."
"This was an incident which occurred in her normal every day work and if she continued with that sort of work, it is highly likely that a similar incident would have occurred within the next, I say, year."
"Q. You have had an opportunity of looking at the scan and I want to know what your view today is in the light of your analysis of the scan with respect to this particular issue.
A. The accelerating effect?
A. Well, my lord, I think it is always a guess. I think probably more than six months. It is very difficult to say. Perhaps one, two, three years. It is largely speculative, as I think Mr Millner said."
"You say one, two, three years and it is all very difficult, before what?
A. Before she would have been in the state that she is in now.
Q. As a result of what?
A. I think there was evidence that she had had some problems with her back before. The accident does not appear to have been of a terribly dramatic nature. It was not trivial but it was not a very major accident. She was somewhat overweight, I think, and was involved in a job which would put a certain amount of stress on the back."
"A. I would have thought that in this sort of job sooner or later one was bound to have this sort of strain. It is not the sort of thing, as I have said before (inaudible) in this event and a job that involves a good deal of bending forwards and pushing and twisting."
"Q If the disc and the annulus are extremely damaged before that minor incident, that would explain how that can happen. But short of some evidence that they were, one has got an incident which, on a fair view of it, if not the most major one in the world equally is not the most minor one in the world. It is not just bending over, or something, is it?
A No. It is not trivial, but on the other hand it is the sort of thing which one would expect to happen from time to time with somebody who is working as a chambermaid. There must be quite a lot of stress to the back bending over, pulling open drawers with the bits of furniture.
Q. I am not suggesting to you that the proper approach to this case is that this was a back that there is no chance it ever was going to go, because that would be unrealistic. What I am suggesting to you is that you are plucking a figure of one, two, or three years and in effect saying 'I am sure that within that time a similar protrusion causing a similar amount of pain to set off all the other problems would have occurred', is putting it much too high.
A. I think it would have happened before too long. As I say, it is a guess, whether it is one year, two years or three years.
Q. What are you saying about that? Are you saying
'I am sure it would have happened within that time, or are you saying 'Well I think there is a chance of it happening within that time', or 'I think there is a better than evens' chance of it happening within that time, or what?
A. I do not say 'certain'. I think it is more likely than not. One cannot be dogmatic about it."
"...my suggestion to you is that the reality of this case is that of course it is possible that the disc may have come out, may have caused nerve root irritation in a similar way and then set the whole chain off, but equally it is well possible that it may not have done.
A. It is possible it might not have done. I just think that it is more likely than not that it would have happened within a foreseeable number of years."
"What you say is 'agree that it is unlikely that she would have been able to continue work as a chambermaid for longer than five years from the time of the index accident, even had the index accident not occurred.' In the light of your then view that the CT scan might show something significant or might show merely something minimal and the fact that it has now turned out to show something significant, I wonder how we get to 1, 2, 3 rather than 5 plus?
A. One could stretch it to five years."
"In reaching these conclusions the doctors of course sought to take an overview of the situation and on some occasions have taken into account matters such as obesity and arthritis in the knees which, to a greater or lesser extent, may not have played a part. But I am satisfied in substance the essential is that five years was a reasonable maximum, in their view, to consider the claimant would have continued to be able to carry on in her pre-accident work.
I conclude that these injuries accelerated the claimant by a period of five years as the result of the defendant's negligent. I see no reason to conclude that the consequences to the claimant would have been significantly different, had the accident occurred five years later. Given that the marriage broke down so quickly in 1993, I consider the same course would likely have followed in 1998, some five years later. She would have lost her job, assuming she was still employed in similar work. Her father would have already died, so that burden would have been faced at a time when she would have been more resilient. If her increase in weight was attributable to the accident, that, too, would have occurred. If not, it was destined to be a problem for her in any event.
In short, I can see no reason not to conclude that in substance the same consequences would have occurred some five years later."
"The difficulty in that approach [Mr de Navarro's approach] is how do I assess the chance? Whether it is assessing a period of acceleration or assessing a chance, it is an element, and one has to accept this, of guesswork, of intuition on the evidence in the case. It seems to me that the evidence here is such that it is right to conclude that there was a period of acceleration and having done that, it seems to me that the most reliable way of evaluating the claim hereafter is to base it on that assumption and not to assume that all consequences would have followed and then discount."
"This is simply a methodology of assessing the value of the Claimant's losses. It could have been expressed in terms of a chance if the medical evidence was presented in that form or if the medical witnesses had said that they did not know when symptoms would arise only that they would arise at some indeterminate time."
"None of the experts including the Claimant's expert sought to look at the matter in terms of a percentage chance that the Claimant would have had or avoided a similar accident and with similar sequelae. The Claimant's counsel never addressed the Judge as to what percentage ought to be the chance occurrence on the basis of the evidence yet now invites this court to do precisely that. The Judge can hardly be criticised for expressing his findings in the way that he did given the way in which the evidence was presented. It would have been wholly wrong for the Judge to express it in terms of a percentage chance given that this was not the way in which the evidence was canvassed."