Wilson v Ministry of Defence & Anor [2007] EWCA Civ 485

Case No B3/2006/1604[2007] EWCA Civ 485
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR AND CITY OF CENTRAL LONDON COURT
(HIS HONOUR JUDGE SIMPSON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 9 th May 2007
Before
LORD JUSTICE WARDLORD JUSTICE TUCKEYLORD JUSTICE WALL
Between
WILSONAppellantTHE MINISTRY OF DEFENCE & ANRRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR D THOMPSON (instructed by Messrs Gregory Rowcliffe Milnes) appeared for Appellant.MR C CORY-WRIGHT QC (instructed by Messrs Beachcroft and Messrs Watmores) appeared for Respondent.
Judgment
[1]This is an appeal from a judgment of HHJ Simpson given in the Mayor and City of London Court in this personal injury claim by the claimant, Paul Wilson, against the Ministry of Defence, arising out of an accident which happened on 22 August 2000 whilst he was serving in the RAF. Liability for the accident was admitted. The judge was to assess damages. Substantial amounts were claimed on the basis that as a result of the accident the claimant had been medically discharged at the age of 44 and would never work again.[2]After a two-day hearing, in a reserved judgment the judge awarded the claimant £1,000 on the basis that he had made a full recovery from the injury sustained in the accident after three months. The claimant appeals to this court with the permission of Smith LJ, who said that:
“…although the judge was plainly entitled to take an unfavourable view of the claimant, I consider that both the main grounds of appeal have a real prospect of success. The judgment contains no explanation as to why the judge concluded that the effects of the accident had run their course within three months of its occurence and that every complaint of discomfort or disability since that time had been deliberate fabrication. It is also arguable that the conclusion was against the weight of the evidence. I have considered whether to invite the judge to give further reasons, in view of the fact that he has already declined to do so, following counsels’ invitation. I do not consider it appropriate.”
[3]The claimant was initially a helicopter pilot in the Army Air Corps. He served for 22 years and was decorated. His service record revealed his conduct, both then and in the RAF, to be exemplary. After retiring from the Army Air Corps he was approached by the RAF to become a helicopter instructor and it was while undergoing training to do this that this accident happened. It happened at RAF Benson, when the claimant was preparing to fly a night vision goggle sortie in a helicopter simulator. Because of computer failure the simulator went into abort mode and fell down, jarring the claimant’s neck. He immediately felt pain in his neck and the next day attended the medical centre at the base where it was noted that he had jarred his neck which had stiffened up overnight. Examination revealed that he was “now holding neck to left hand side, very stiff, pain”.[4]Over the following months, he was treated and reviewed by RAF medical officers and physiotherapists. The relevant events have been helpfully set out in a chronology prepared by Mr Thompson, counsel for the claimant now, as he was at trial. I gratefully take what follows from his skeleton argument, which summarises this chronology.[5]The claimant’s neck pain and reduced movement continued. In November 2000, he was sent for an X-Ray which revealed:
“Loss of normal lordosis [that is normal curvature of the spine due to muscle spasm]. Mild degenerative change at C5/C6.”
An MRI scan of the neck was performed which confirmed loss of the usual curve of the cervical spine and revealed some arthritis. “Loss of normal cervical lordosis. Degenerative change. No cord compression ...”[6]On 21 December 2000, because of continuing pain, stiffness and reduced movements, the claimant was referred for review by a civilian orthopaedic surgeon, Mr Pike. Mr Pike reviewed him and decided that he needed an operation. This operation took place on 15 March 2001. The notes record:
“Cervical facet joint injections and MUA [manipulation under anaesthetic] of spine by Dr Pike and Dr Markham: lateral rotation L 50 degrees, R 45, obtained gently.”
[7]The claimant continued with physiotherapy and medication. The pain improved but restriction of neck movement persisted. He was reviewed in Dr Markham’s pain clinic in May 2001. The note of that review was:
“Pain free but very limited movement to the right side -fairly sure not mechanical block to movement and that this is muscular.”
[8]The physiotherapy continued and he improved. On 17 July 2001, the physiotherapist noted:
“Still maintaining good R rotation, able to drive and returned to work without problems. Still not able to resume flying.”
His medical officer noted on 31 July that:
“Wishes to sit in motionless simulator and practice start up and shut downs with no helmet. Happy that he is progressing, especially in last month. Aware of minimal risks.”
A note on 6 August 2001 says:
“Still lacks last few degrees of right rotation; back in simulator now without movement, feels good.”
Two days later, it was noted that he “was on the mend and started refresher training at RAF Odiham; “he warrants his time promotion”. That was promotion from Flight Officer to Flight Lieutenant, which came through the following month backdated to April.[9]However, during the following weeks and months his progress abated and his neck became stiff again. He attended for treatment and review on several occasions. On 2 October 2001, it was noted that he had progressive stiffening of his neck with sharp pain in the first 10 degrees of rotation. After physiotherapy, movement was restored but the pain began to return after five minutes. On 3 October 2001, his medical officer took the view that as he was still symptomatic after over a year he required a formal review. A Medical Board was overdue. He had advised the claimant that it was likely that he would be given non-flying employment status.[10]He was referred to a Wing Commander Cartwright, an RAF occupational health adviser, with a note of his progress or lack of it with physiotherapy. On 15 November, he was assessed by Wing Commander Cartwright, who noted:
“Crash has left him with considerable problems with neck pain. States at present that he does not consider that he is fit to fly, despite being keen to get back into the air. Gait and posture normal. Lateral rotation to right only 60 degrees. Limited lateral flection to left. Significant neck injury and continues to have limited function of the neck. Although this man has no obvious pathology producing his symptoms, there is no doubt that he has sustained a significant neck injury and continues to have limited function of the neck. He may have sufficient movement of his neck for the purposes of driving, but not for flying. Added to that he must be considered an eggshell skull case, whereby returning him to flying duties would place him at greater risk of a further neck injury, particularly when flying on night vision goggles. I recommend that he is referred to boards for consideration of the award of permanent medical employment status: unfit for service outside base areas and unfit for strenuous exercise.”
[11]As a result of Wing Commander Cartwright’s referral, the appellant went before a Medical Board on 2 February 2002, where it is recorded that:
“Sleep disturbed three to four nights by neck pain. Range of neck movement restricted constantly. Doing some informal cycling. Avoids dynamic activities. Sitting tolerance about two hours. Driving more than 45 minutes problematic. No longer considered himself fit to fly. On general examination his head held rigidly with a torticollis to the left. Rotation to the right approximately 20% of normal. The board considered that Flight Lieutenant Wilson was unfit for flying duties and that continued military service would have a detrimental effect on his neck condition. Accordingly, the board awarded an MES of permanently unfit for further service.”
[12]This recommendation took some time to process, but in May 2002 he was sent on gardening leave and was finally medically discharged from the RAF on 27 October 2002. It is unnecessary to refer to the claimant’s medical history after this, although he continued to received treatment and further investigations were carried out.[13]These proceedings started in August 2003. In January and March 2004 the appellant went on skiing holidays with his wife and the teenage children from his previous marriage. A video, which showed the claimant skiing during the first of these holidays, was provided by his ex-wife to the defendant. The defendant also produced surveillance videos of the claimant shopping and walking through the centre of Salisbury and taking garden rubbish to a dump in May 2005.[14]Three doctors were instructed and gave evidence at the trial. Dr Ellis, a jointly instructed consultant rheumatologist, concluded that the accident had caused soft tissue injuries to the cervical spine which had affected the musculature of the neck and the joints and possibly the discs of the spine. This was responsible for the claimant’s symptoms. He was incapable of any form of work and the prognosis was poor. The video and DVDs of the claimant, in Dr Ellis’s opinion, confirmed a continual abnormal restriction of neck movement. It was possible, but unlikely, that the claimant was exaggerating his symptoms.[15]Consultant neurosurgeons, Mr McFarlane for the claimant, and Mr Maurice Williams for the defendant, had each prepared reports before trial and a note of what they agreed and disagreed about was before the court. This records as points of disagreement:
“Mr Maurice Williams believes that Mr Wilson sustained no more than a soft tissue injury to the cervical spine, superimposed on some pre-existing degenerative change. He believes that Mr Wilson should have made a full functional recovery from this over three months at the most, and although he may have been left with some residual symptoms from time to time thereafter, this should not have been sufficient to cause any functional disability. His view on this matter is reinforced by the skiing DVD. By contrast, Mr MacFarlane believes that Mr Wilson does have significant residual symptoms sufficient to affect his working capacity. He believes that the index accident was responsible for the symptoms that led to his discharge from the RAF. In his opinion, Mr Wilson was fit for sedentary work of up to four hours from January 2004.”
[16]There was agreement about a number of matters relating to the injury itself. The sixth point is noted as follows: “We have both seen the video of Mr Wilson skiing and the surveillance DVDs. We agree that the sequences show no evidence of torticollis which he said helps to relieve pain. This being so, Mr Maurice Williams believed that this is a case where there is exaggeration of symptoms. Mr MacFarlane does not disagree, that there is an element of exaggeration because of the inconsistency between the way he presents at consultations and his demeanour in the both the video and the DVD. In Mr MacFarlane’s opinion, the 2005 video does show evidence of restriction of neck movement; Mr Maurice Williams is not convinced about this; We agree that someone suffering from disabling neck symptoms would not have attempted to ski”.[17]That was the medical evidence before the judge. The claimant, his wife and his ex-wife also gave evidence. The hearing ended on 16 May 2006 when the judge reserved judgment. He delivered it five weeks later on 3 July. The judgment occupies just three and a half pages of transcript. After a brief introduction, in which the judge noted that flying was the appellant’s life, he said at paragraph 5:
“At the heart of this litigation is a dispute as to whether the claimant is exaggerating his symptoms. This centres upon Mr Wilson tilting his head described as torticollis which is an involuntary movement. The medical evidence is that this usually lasts no more than a few days. The claimant says that he tilts his head deliberately to relieve his pain.”
He then contrasted the way in which the claimant held his head in court with the way in which he had held it in the videos, and referred to the fact that both neurosurgeons agreed that there was exaggeration. He agreed with Mr Maurice Williams that it was difficult to believe that anyone with any significant neck problem would undertake a skiing holiday.[18]Other matters to which the judge referred in his judgment are the ex-wife’s evidence, which largely to hearsay and inconsistency between the claimant’s statement and his evidence as to whether the condition of his neck had improved since May 2004 and the fact that the “first time torticollis appeared very marked was at the medical board on 2 February 2002” and that it was present whenever he saw experts in the case, but not all the time when he had been to treating doctors.

The judge concluded his judgment by saying:

“16. The photographs of the skiing trips show he went skiing twice as I have recounted and on the first occasion this was after the period he told Mr MacFarlane that he had had a really bad month, and that was December 2003. In my judgment the skiing trips are inconsistent with somebody who is worrying about bringing on extra pain, particularly as he was a beginner and not an experienced skier and it is simply wrong that he should have presented himself as disabled from work, in those circumstances. I accept that the claimant has exaggerated his case. The balance of the medical evidence shows this. In my judgment Mr Wilson has done this deliberately in order to inflate his claim for damages. The false evidence contained in his statement as to his lack of improvement, false by his own admission, points in that direction. The appearance of the torticollis at the Medical Board, when he already knew he could not fly again is also very telling. In my judgment functional disability would not have lasted more than three months and the damages will be assessed on that basis. Mr Wilson’s evidence is unreliable and I cannot hold that any of his present complaints are genuine.”
[20]After judgment there was some discussion about the quantum of damages and Mr Thomson asked the judge:
“… I just want to know, the matter of discharge from the RAF, is your finding that there was deliberate malingering in order to procure a discharge from the RAF?”

The judge said:

“My finding is that he was functionally improved by three months after the date of the accident. Thereafter everything else was deliberate.”
[21]The judge then adjourned and counsel agreed the claim at £1,000, on the basis of the judgment. This was simply an award for pain and suffering. Mr Thompson applied for permission to appeal. When he was able to explain the basis of his application, he said:
“You have erred in fact by not giving sufficient or any accord to the cotemporaneous records of his time in the RAF, those three months and beyond, not least his recovery and then return to flying and then returning of the symptoms thereafter.”
That, of course, was a reference to the history which I have summarised of the appellant’s attempt to get back into the simulator, his achieving that and then finding that his condition deteriorated.

Judge Simpson replied by saying:

“What I’ve said is after the three months it had nothing whatever to do with the accident so leave to appeal is refused.”
[23]Well, it is not difficult to anticipate what Mr Thompson says is wrong with this judgment. It can be put shortly in the way that Smith LJ put it in her reasons for giving permission to appeal. The judgment does not engage at all with the substantial body of contemporaneous evidence, which suggests that the claimant was suffering from genuine continuing symptoms in his neck, at least down to the date of his discharge from the RAF in October 2002; that is to say, for nearly two years after the judge finds that the claimant had made a full recovery. Is he really saying that the claimant’s complaints were entirely fictitious from a period of three months after the accident and if so, why does he reach that conclusion? In saying what he did, he has not dealt with Mr MacFarlane’s evidence at all and has not given sufficient reasons for rejecting Dr Ellis’s evidence. Mr Thomson also complains about the brevity of this reserved judgment. He also makes the point that it is extraordinary for the judge to conclude, that a man for whom flying was his life should have manufactured the means by which he was prevented from continuing with his RAF career.[24]Mr Cory-Wright QC, for the defendant, has strenuously tried to defend the judgment, although he appreciated how difficult this task was. Nevertheless, he submits that it was open to the judge to make the finding which he did. The way he put it to us is that the judge found that the claimant was wholly unreliable, both as to his presentation at any given time to doctors, whether treating or forensic, and as to his presentation in court. On this basis his claim should be limited, as the judge found, to the normal or average expectation of pain and disability as a result of a soft tissue injury of this kind to the neck: three months, on Mr Maurice Williams’s evidence. The claimant’s unreliability was, he submitted, demonstrated by the nature, variability and unreliability of his torticollis. From shortly after the accident, until the medical board in February 2002, no one had mentioned this feature and then it was most marked only when the claimants saw the expert doctors. This was to be contrasted with what the videos show. Mr Cory-Wright also relied on the other matters referred to by the judge.[25]The difficulty about these submissions is that Mr Cory-Wright never in fact presented the defendant’s case to the judge in the way the judge found. He has shown us his written closing submissions which say:
“Let me make it clear, the defendant is not saying that there have been and are no symptoms in terms of pain or some small limitation of movement in rotation. There may possibly be those things, but the defendant says that they are not disabling and do not prevent work.”
[26]So, it is quite clear that the case being put before the judge by the defendant, as Mr Cory Wright accepted this morning, was one of exaggeration. That seems to have been how the judge saw it, from the passage which we have quoted from paragraph 5 of his judgment, where he describes this as the central issue but this is not the basis upon which the judge decided the case. Based on events which started with the skiing holiday in January 2004 he decided that the claimant had made a full recovery by November 2000. But the fact that the claimant may have exaggerated or even fabricated his symptoms from January 2004 was not determinative of whether the accident had in fact caused symptoms for more than the three months and, importantly, whether they had led to the claimant’s discharge from the RAF. In order to resolve these questions, the judge had to engage with the body of evidence to which I have referred, dealing with the period from the time of the accident to October 2002. That was evidence which did not suggest at any stage that the claimant was deliberately fabricating his symptoms. Several doctors and the medical board had accepted that they were genuine. That was Mr MacFarlane’s view also, although he did accept that there may have been some exaggeration from January 2004. If the judge rejected his evidence, it was incumbent upon him to say so and why. He rejected Dr Ellis’s view that there was no exaggeration on the basis that he was unwilling to accept anything which did not accord with his thesis, but said nothing about the substance of his evidence, to which I have referred, which was to the same effect as Mr MacFarlane’s.[27]At the very least a judgment is required to make it clear why the party who loses has lost. This judgment did not do so. If the judge was saying that all that the claimant had complained from three months after the accident on was a complete fabrication, he should have said so clearly in his judgment and not in a few throw-away remarks after he had delivered it. He should also have explained why he reached this conclusion. Later exaggeration by the claimant was not an adequate explanation of itself.[28]These cases are always difficult. Some people do genuinely suffer permanently disabling soft tissue injuries to their necks or backs. Some say they do, when they do not. It is incumbent upon the judge deciding such a case to spell out what his findings are and give reasons for them. HHJ Simpson, regrettably in my judgment, did not do so.[29]Mr Cory-Wright has urged that if we find the judgment unsatisfactory, as I do, we should decide what the proper basis for the award to the claimant should be on one of two alternative bases. First, that the disability was limited to 18 months, that is to say up to the time of the medical board; alternatively, up to January 2004, the time of the first skiing holiday. He submits that on the evidence and on the judge’s findings one of these alternatives must be the right one and we should say which. It would, he submits, be wholly disproportionate to order a rehearing.[30]I do not accept these submissions. It is of course very unfortunate that we should have to order a rehearing, but I think this is inevitable. Mr Cory-Wright may be right that damages should be assessed on one or other of his alternative bases. But the claimant is entitled to have this done after a hearing and in a judgment which does justice to his case and properly explains the basis for any decision.[31]One critical issue which greatly affects the value of this claim is whether the accident affected the claimant’s ability to work. I do not think that this is an issue which this court could possibly or should decide. It is further complicated by the fact that the claimant had some degenerative change to his neck before the accident.[32]So for these reasons, I think the appeal must be allowed and the assessment of damages should be reheard by a judge other than HHJ Simpson.[33]My Lord, Lord Justice Tuckey has fully covered the ground and there is nothing that I can usefully add, save to say that I entirely agree with my Lord’s strictures on the judgment given in the court below. Likewise, for the reasons my Lord has given, there is in my judgment no alternative but to order a retrial. I regard this as most unfortunate in terms of the additional costs, delay and stress involved, but as I have already indicated, in my judgment it is an inevitable consequence of the judge’s failure to deal properly with the evidence before him. Like my Lord, therefore, I would allow the appeal, set aside the judge’s order and direct a retrial.[34]I also agree. This is a judgment of 16 paragraphs over three and a half pages; astonishingly, the product of having been reserved for several weeks or thereabouts. Yet it remains a judgment which is regrettably sparse in its reasoning. The judge simply did not address the issues squarely placed before him by counsel. He reached a conclusion even more adverse to the claimant than the defendant was contending for; why he reached that stark conclusion was not adequately explained. The claimant cannot know, and more importantly this court cannot know, how the judge accounts for the history of the claimant’s presentation to many who treated him, when that presentation can be seen as being quite at odds with a deliberate concoction of a variety of complaints.[35]For my part, I find a fatal inconsistency in the judge’s assessment of the claimant. He found him, no doubt correctly, to be a man for whom “flying was his life”. Yet he also found that from three months after the accident this was a man who was inventing a range of symptoms which would inevitably kill his flying life stone dead.[36]Sadly, the deficiencies in the judgment are an embarrassment, since the consequence of allowing this appeal, which we must do, is that for the reasons given by my Lord, Lord Justice Tuckey and my Lord, Lord Justice Wall, the parties must start all over again before another judge other than HHJ Simpson.[37]I would add only a small tribute to Mr Cory-Wright, who did his best to defend the judgment.

Order

Appeal allowed.