Masood v Kerr & Ors [2010] EWCA Civ 1347

Case No B3/2009/1120[2010] EWCA Civ 1347IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE KNIGHT QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/12/2010
Before
THE RIGHT HONOURABLE LORD JUSTICE WARDTHE RIGHT HONOURABLE LORD JUSTICE LONGMORETHE RIGHT HONOURABLE LORD JUSTICE ETHERTON
Between
HASSAN MASOODAppellantAILEEN KERRRespondentsJENNIFER FRANCES PAL-KERRespondent
Mr Hassan Masood (who appeared in person) for AppellantMr Marcus Grant (instructed by Rollingsons Solicitors) for RespondentsHearing Hearing dates: 2 nd November 2010
Judgment

Nature of the Case

[1]This is an appeal against the order of His Honour Judge Knight QC dated 29th April 2009 in which he dismissed the appellant’s claim for damages brought on the basis that a road traffic accident had caused him to develop Chronic Fatigue Syndrome (“CFS”) otherwise known as ME.

Factual Background

[2]Mr Masood, the appellant was born on 14th April 1941. At the age of 60 on 27th December 2001 he was involved in a road traffic accident with Glen Forrester. Mr Forrester’s van drove into the back of the appellant’s car in Kingston-upon-Thames. It is common ground that this caused the appellant a whiplash injury[3]For a number of years the appellant had worked in various roles for Century Life Ltd, which was purchased by Liberata Life Pensions Investment Limited in about 2000, whereupon be became an employee of that company. His employment ran from 6th January 1987 to 13th September 2002 when he was made redundant. At the date of his dismissal his final basic salary was £32,963. The appellant brought proceedings against his former employers for unfair dismissal, race discrimination and disability discrimination. The matter was settled on terms which included the payment of a £50,000 capital sum to the appellant.[4]In the present proceedings, the appellant claimed that the accident in December 2001 had caused him to suffer whiplash, pain, aches and exhaustion eventually leading to the diagnosis of CFS. The total damages claimed were in the region of £295,000.[5]An alternative case was, despite the judge’s doubts, advanced at trial that, even if the accident had not caused the appellant’s CFS, it had exacerbated or brought forward its onset.[6]His Honour Judge Knight QC decided that the claimant already had CFS at the time of the accident and that it was, therefore, not caused by the accident. He awarded the claimant £2,000 for the whiplash injury and an extra £1,000 for the exacerbation of his CFS that may have been caused by the accident.[7]The judge set out at length Mr Masood’s medical history. In so doing he made one error in inserting the word “long-standing” before “backache” in the note for November 2000 although it was common ground that the illegible word in the notes should be read as “coughing”. Subject to this, the account given in the judgment was accurate.[8]In the end the judge, while accepting that he was faced with an “acute” causation problem in the light of conflicting medical evidence, decided that he preferred the evidence of Dr Webley the defendant’s expert to that of Dr Huskisson called by Mr Masood. He did this because he thought Dr Webley correct to say that the contemporaneous pre-accident notes relating to Mr Masood contained the ingredients of a CFS diagnosis even though such a diagnosis was not then definitively made. Those ingredients were raised ESR fatigue post-viral fatigue episodes of pyrexia and chronic rhinitis or sinusitis Mr Masood had said in his evidence that the fatigue he suffered before the accident was significantly different from the fatigue he suffered after the accident but, having heard Mr Masood being cross-examined, the judge rejected that evidence and he gave reasons in para 35 for saying that he had not formed a favourable view of Mr Masood’s evidence. Mr Masood challenges the judge’s findings about the reliability of his evidence.[9]The judge then said (para 42) that he was not persuaded that Dr Huskisson’s attempt to distinguish the claimant’s condition prior to the accident from that following the accident was an objective attempt because “It must rely on information gleaned from the claimant, in particularly his evidence, which I have found to be less than reliable.” By this I understand him to have meant that Mr Masood had in his evidence attempted to play down the significance of the possible ingredients of a CFS diagnosis as noted in the previous paragraph and that Dr Huskisson, in also playing them down, was, in principle, accepting the evidence of Mr Masood at face value. Dr Webley on the other hand, had rightly relied on the ingredients as indicating the probable existence of CFS at that stage.[10]There were, moreover, two further pieces of non-expert evidence pointing the same way on which the judge also relied. First (as already explained) Mr Masood had complained to an employment tribunal of unfair dismissal, racial discrimination and disability discrimination. In the application form his solicitors had said on his behalf that he first became ill with ME in March 2001. Mr Masood said that that was just a mistake for March 2002 but the judge, who had formed an unfavourable view of Mr Masood’s evidence in general said he was unimpressed with Mr Masood’s attempt to explain this point away.[11]Secondly, after Mr Masood had been to his GP in September and November 2001 and had been noted as having “mumps” “high fever” “repeat attacks of aches and pains” “viral infection” and “post-viral syndrome”, that GP referred Mr Masood to a consulting physician and rheumatologist Dr Jawad who raised 3 queries “post-viral fatigue? Connective tissue disease, vasculitis?” Dr Jawad referred Mr Masood for a CT scan of the sinus area, saying to the GP in his letter “The possibilities in terms of diagnosis include, post-viral fatigue syndrome, a connective tissue disease or a vasculitis.” The scan revealed a polypoid mucosal thickening in the sinuses, but the viral titres had come back negative.[12]The claimant did not see his GP again until August/September 2002. On the 19th January 2004 Dr Jawad wrote to the DSS regarding the claimant’s claim for State Benefit. The first paragraph reads:
“I am writing on behalf of my patient Mr Hassan Masood, to update you on his medical condition and previous investigations carried out. Mr Masood was first referred to me in November 2001. He had a collection of symptoms, which included in particular, joint pain, muscle pain, and a deterioration of his health in general. This was making his work and everyday activities extremely difficult. He was also seen by a number of other consultants during that time for investigation. When I first saw Mr Masood, he was extensively investigated with a number of blood tests, CT scanning, and bone scan. Repeated investigations excluded a number of potential illnesses, and I felt his symptoms and presentation fulfilled the criteria for chronic fatigue syndrome or ME. This was the agreed final diagnosis. …”
In para 7 of his witness statement for the trial, Dr Jawad, giving evidence as a witness of fact not an expert, said that this letter should not be read as meaning that Mr Masood was suffering from CFS symptoms in November 2001. The judge was “unimpressed” with this evidence (para 14) and clearly thought that in 2004 Dr Jawad considered that the ingredients of CFS were present in November 2001. Indeed in a report of 15th March 2003 made for the discrimination claim, Dr Jawad reiterated that Mr Masood’s CFS had been present for more than 12 months “and perhaps closer to 24 months”.[13]On 25th February 2010, Rix LJ gave permission to appeal because:- i) the judge had said he was faced with an acute causation problem arising out of conflicting expert evidence. In these circumstances it could not be said that there was no prospect of a successful appeal because this court could consider the “logic of the situation” as well as the judge; ii) the role of the judge’s finding (that Mr Masood’s own evidence was unreliable) was uncertain in what was essentially a battle between experts; iii) even if the CFS had originated prior to the accident it was not clear from the judgment what the judge’s views were on the appellant’s alternative case of exacerbation; iv) it was not clear that a series of questions and answers during Dr Huskisson’s cross-examination described as critical by the judge were in fact so.[14]In the light of Rix LL’s reasons for granting permission to appeal, Mr Masood, who appeared before us in person, reformulated his grounds of appeal:-(1) the judge erred in preferring the opinion of Dr Webley to that of Dr Huskisson because: i) the judge had no basis upon which to conclude that Dr Huskisson had relied on the appellant’s own evidence; ii) the judge erred in giving undue weight to the appellant’s input as a layman in a medical causation issue involving a complex diagnosis; iii) in preferring the opinion of Dr Webley, the judge failed to give due weight to the reports and opinions of the appellant’s treating clinicians as recorded in his medical records; iv) the balance of the general medical consensus was against the opinion of Dr Webley and the judge erred in preferring the minority view; v) The judge would have reached a different conclusion had he been provided with a transcript of Dr Huskisson’s evidence. It was wrong from him to rely on the notes of the respondents’ counsel.(2) the judge failed to deal with or adequately deal with the appellant’s alternative case of exacerbation.(3) the judge erred in his finding that the appellant was an unreliable witness: i) the appellant was not attempting to dodge or avoid questions. Any rambling could be explained by his exhaustion; ii) although the respondents’ counsel accepted that the appellant had CFS, he did not understand his symptoms, or he would not have subjected him to 3 hours of cross-examination; iii) The judge erred in allowing the respondents to use untested statements of the appellant made in relation to the proceedings before the Employment Tribunal; iv) The judge erred in allowing the respondents to adduce the letter of Dr Hughes dated 20th August 2007 in which he had changed his opinion; v) The appellant was a man of good character whose employment with any of his employers was never terminated before the onset of CFS.[15]It is convenient first to deal with this third ground.

Mr Masood’s own evidence

[16]I have already said that the judge did not form a favourable view of Mr Masood’s evidence. That is particularly the province of a trial judge and this court will not interfere with such an assessment unless satisfied that it is plainly wrong. I am not so satisfied. The judge gave cogent reasons for coming to this conclusion in para 35 of his judgment. It is true that in the course of that paragraph he rejected Mr Masood’s denial of the statement that he suffered muscular skeletal “long-standing” backache (as recorded in the GP notes) when the notes referred to “coughing” not “long-standing”. But that is only a peripheral error in the context of Mr Masood’s overall medical condition. It is also an understandable error since the notes are very difficult to read. It is not such as to cast any doubt on the correctness of the judge’s assessment of the reliability of Mr Masood’s evidence as a whole.[17]As to the other complaints under this head, Mr Masood had the advantage of being represented by Mr Buchan of counsel at the trial. If there had been signs of exhaustion or inability to withstand cross-examination, Mr Buchan would have intervened. There was no impropriety in cross-examining Mr Masood about the content of his application to the Employment Tribunal nor was there any impropriety in showing to the judge the letter from Mr Masood’s first expert saying why he had changed his opinion. Mr Masood said that the judge should have been informed of District Judge Stewart’s statement (made in the course of a judgment allowing Mr Masood to call Dr Huskisson as an expert instead of Dr Hughes) that Dr Hughes had unilaterally altered his opinion without satisfactorily asserting why he had done so either to the court or to Mr Masood. It was, in fact, clear that Dr Hughes did not wish to give evidence once he had learnt that Mr Masood’s application form to the Employment Tribunal stated that his CFS/ME had started in March 2001. That was not an unreasonable stance for Dr Hughes to have taken. Judge Knight probably knew what the position was but, even if he did not, his assessment of Mr Masood would not have changed if he had been told what Judge Stewart had said.[18]Mr Masood has, therefore, to live with the judge’s assessment of his reliability.

The difference of opinion between the experts

[19]The judge had to make a decision. He recognised that the conflict gave rise to an “acute causation problem”. He preferred the evidence of Dr Webley and, in my opinion, he was entitled to do so. It is true that Dr Webley in both his report and the joint report of the experts had relied on an apparent signing off of Mr Masood from work in September 2001 for ME. But it turned out before trial that that was an error in his employer’s records because his employer had misread the medical certificates. That had been cleared up before Dr Webley gave his evidence which was to the effect set out in para 8 above. That evidence is, of course, buttressed by what I have called the two pieces of “non-expert evidence” at paras 10-12 above. In all the circumstances it is not surprising that the judge preferred Dr Webley’s evidence which was cogently advanced and had no obvious flaws.[20]Rix LJ was concerned that, if the judge had to weigh up the conflicting expert evidence, there might be no room for Mr Masood’s own unreliability to affect that balance. But Mr Grant for the respondent persuaded me that the judge cannot be faulted here, in the sense that it was necessary to come to a view on the question whether Mr Masood was correct to say that the fatigue from which he suffered before the accident was different from the fatigue he suffered after the accident. The main difference according to Mr Masood was that after the accident it was chronic while before the accident it was only occasional and never lasted very long. It was only in this context that the judge said that Dr Huskisson’s evidence had relied on information obtained or “gleaned” from Mr Masood. That was an unexceptionable comment since Dr Huskisson’s job was not to assess whether Mr Masood was correct in what he said. That was for the judge.[21]As for counsel’s notes of Dr Huskisson’s evidence there was no irregularity in the judge referring to them. They were the only available record since no simultaneous transcription was made of them during the trial. As it happens, the transcript which we now have does not indicate that counsel’s notes were substantially inaccurate, although they are much more condensed than the transcript. Having read both the note and the transcript, I share Rix LJ’s puzzlement as to why the judge thought that they were critical. I do not think Dr Huskisson was saying any more than that he would be concerned if he thought Mr Masood’s account of the onset of his CFS/ME were to differ from time to time depending on the context in which he was giving that account. It is perhaps difficult to see how that could be critical in weighing the evidence of the experts as against each other. But that does not seem to me to be of much (if any) consequence in the case. There were always good reasons to prefer Dr Webley’s evidence as to the timing of the onset of CFS as I have already set out.

Exacerbation

[22]This ground of appeal stems from an incidental remark made by the judge in the course of setting out Mr Buchan’s submission that, even if Dr Webley were right to say that CFS/ME existed at the time of the accident, the CFS “could have been exacerbated by the accident. It is not clear to me whether this was meant to amount to an alternative case.” Mr Buchan’s instructions were, of course, that the CFS only arose after the accident and he was, no doubt, anxious not to detract in any way from that primary case. But by the time the judge reached the end of his judgment he had, of course, rejected that primary case and had to deal with the possibility that the accident had caused the CFS to worsen. He awarded £2,000 for the whiplash injury saying “to which I would add £1,000 reflecting an element of enhancement of fatigue due to the accident, making a total award of £3,000.”[23]It is therefore clear that the judge understood that there was an alternative case and that it did succeed in the amount of £1,000. Mr Masood says it should have succeeded in a much greater sum because he would have been able to work much longer than up to May 2002 and that he, therefore, suffered a significant loss of earnings. But that is speculative and unsupported by any expert medical evidence. In the circumstances I can see nothing wrong in the award which the judge ultimately made.

Conclusion

[24]I would therefore dismiss this appeal while paying tribute to the measured and skilful way in which Mr Masood presented his own case.[25]I agree.[26]I also agree.