Mazo v Boyle (t/a the Westbourne & Anor) [2016] EWCA Civ 423

Case No B3/2014/4325[2016] EWCA Civ 423
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT CENTRAL LONDON
(HER HONOUR JUDGE BAUCHER)
Venue Royal Courts of JusticeDate Tuesday, 16 February 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
Between
MAZOAppellantv
Between
BOYLE T/A THE WESTBOURNE & ANRRespondent
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA DTI Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr C Sephton QC (instructed by Breakwells) appeared for AppellantMr A Davies (instructed by Clyde & Co) appeared for Respondent
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is a renewed application for permission to appeal against the decision of Her Honour Judge Baucher given in the Central London County Court on 2 December 2014.[2]The claim brought by the Appellant was for damages for personal injury arising out of an accident on 23 August 2009 when the Appellant tripped over a low-level marker rope in poor lighting conditions. She was 34 at the time of the accident, having been born on 21 February 1975. Liability was admitted, so the trial was concerned only with the quantum of the damages.[3]The learned trial

judge summarised the case as follows, judgment transcript paragraph 2:

"Following the accident, the claimant was taken to the A&E department of St Mary's Hospital, Paddington, where x-rays confirmed a left comminuted distal radius fracture, an ulnar styloid fracture. She was treated with reduction and application of plaster of Paris. The complexity of the wrist injury caused the claimant to be referred to the plastic and reconstructive surgery unit, Chelsea and Westminster Hospital, with further x-rays and then surgery on 3rd September 2009, with open reduction and internal fixation of the distal radius fracture, carpal tunnel decompression and ulnar styloid fracture fixation. She was discharged on 5th September 2009. The claimant had various attendances at Chelsea and Westminster Hospital until 2nd March 2010. Thereafter, the claimant developed post traumatic arthritis in a distal radio-ulnar joint, (DRUJ). The injury was to the claimant's non-dominant hand. The claimant also seeks damages in respect of her psychiatric condition. The claimant was off work for seven months. She developed an endocarditis infection in April 2010, had an aortic valve replacement on 5th October 2011 and scar revision surgery in August 2012, all unrelated to the accident."
[4]Then the following from paragraph 3:
"The Claimant's claim is that as a result of the advice she received from Associate Professor Povlsen and increased painful symptoms in her wrist, she ceased working in May 2013 as an interim HR consultant, being the sole director of Move On Consulting. The Claimant seeks to recover damages of £4,235,004.77."

The judge in fact awarded £156,871.82.

[5]She heard oral evidence from the Appellant, her experts, Associate Professor Povlsen, orthopaedic, and Dr Jones, psychiatric, and from the defence experts, Mr Eckersley, orthopaedic, and Professor Fahy, psychiatric.[6]Refusing permission to appeal on the papers, Dame Janet Smith said this:
"This was clearly a complex case in which the judge was faced with differing orthopaedic and psychiatric opinions. The Appellant's evidence was successfully challenged on a number of issues, particularly those relating to her ability to work. The judge was unimpressed by the Claimant's evidence. It appears to me that the judge analysed the evidential issues carefully and reached conclusions which she was entitled to reach. The grounds of appeal and skeleton argument made very wide-ranging complaints which really amount to the allegation that the judge just "got the case wrong."
I have found it impossible to identify any single point on which it appears arguable that the judge was wrong, at any rate in a way which mattered to the result. There may be some. If so and if the application is renewed orally, I would suggest that such points be clearly identified."[7]Mr Sephton QC has, as it were, responded to the judge's invitation and produced a revised skeleton argument.[8]At paragraph 6 of her judgment,

the judge encapsulated the issues in the case as follows:

"What symptoms has the Claimant suffered? What are the appropriate diagnoses and what effects and restrictions have they on the Claimant's working and personal life?"
There follows an extremely detailed and generally careful treatment of the evidence.[9]The judge's findings are at paragraph 58 and following. She describes excellent progress made by the Appellant in 2009 and 2010 as evidenced by the contemporary medical records. She returned to work, but she was signed off work again in March 2013 or thereabouts. A major issue in the case was whether this cessation of work was attributable to the accident. The judge found that it was not.[10]She explained at some length (paragraph 64 onwards) why she did not find the Appellant to be a credible witness. I note in particular, but will not read out, paragraphs 65, 67 and 70.[11]The judge's view of Professor Povlsen as a witness was guarded, not least since (paragraph 77of the judgment) his evidence was "entirely dependent upon the Claimant's account and its integrity and I do not accept the veracity of her complaints or her explanation. "[12]She was, however, impressed with Mr Eckersley, the Defendant's orthopaedic expert, not least in connection with the possibility of removing the plates or metalwork with which the Appellant's fractures had been fixed. I will set out paragraph 81 of judgment where

the judge says this:

"I do not consider that the Claimant has suffered an injury which has resulted in carpal instability. I accept Mr Eckersley's explanation as to why he considers removal of the metalwork would be beneficial. Even Associate Professor Povlsen conceded that any such procedure would be much smaller. I accept Mr Eckersley's evidence that there is clear irritation from the screws. I accept Mr Eckersley's assertion that there may be some inflammation and that the reason there is no such evidence on the scan is because Dr Wilson may not have looked far enough."
I interpolate: Dr Wilson did not give oral evidence but conducted some tests, and there is material from him in the papers.[13]The paragraph continues:
"Removal of the plates has to happen in any event and in my view, it is a logical step to remove the plates to see if there is any improvement to the Claimant's symptoms such as they are."
[14]I note the judge also preferred the evidence of Professor Fahy over that of Dr Jones on the psychiatric front (paragraph 86 onwards).[15]The judge made findings as to the recoverable damages in line with her findings of fact. Notably, she made no award for future loss of earnings and that is the principal complaint made by Mr Sephton.[16]As Dame Janet Smith observed, this was a complex case. The points made by the Appellant are articulated in Mr Sephton's revised skeleton argument. There are, in fact, some eight of them, but the first one constitutes his principal case.[17]It is put in the skeleton at paragraph 15 in this way. It is said the judge was wrong to find there was "no evidence" that the Appellant had to give up work because of the accident. This has been developed in the course of submissions before me this morning. Mr Sephton has submitted in a nutshell that the learned judge has simply failed to deal with a central issue in the case, which was, what are the consequences of the admitted deterioration of the Appellant's injury? There was no doubt that she was suffering from arthritis.[18]Mr Sephton submits that Mr Eckersley accepted that any surgical options would have potential problems (see page 311 of the transcript). He refers to Dr Wilson's work, which he says shows (and showed Mr Eckersley) that the cause of the Appellant's continuing problems when back at work after 2013 was arthritis in the joints rather than anything else. Mr Eckersley however, he says, dismissed this or did not grapple with it (see the references at paragraphs 9 to 11 of Mr Sephton's skeleton).[19]He also says that the judge misattributed some statements or propositions to Mr Eckersley (see paragraph 17 of the skeleton). In short the judge has left unresolved the plain question of how the arthritis from which this lady suffered was to be dealt: with what consequences would it have for her capacity to work?[20]Mr Davies, who has appeared for the Respondents before me this morning submitted that the experts were agreed that there had to be fusion of the DRUJ, the distal radio-ulnar joint. That, says Mr Davies, would have addressed the continuing arthritis. Mr Davies says it would have left the Appellant with a fully functional arm. That was his expression. It would mean that the arthritis would progress no further. It was also clear, he says, that removal of the metalwork would be needed before that could happen. So, he submits the points about Dr Wilson's evidence in a sense were really neither here nor there. It was clear that this arthritis would be and could be dealt with, and that was consistent with the finding of the judge that there should be no compensation for future loss of earnings.[21]It may be that that is the reality. It may be that the judge's poor opinion of this lady's evidence had some bearing on his conclusions as to how she might fare at work. But having read and re-read the judgment, I have considerable difficulty in seeing where that clear position, if it was the position, is articulated in the reasoning of the judge.[22]This was a major, complicated claim. It seems to me that it was incumbent on the judge to state a clear position about this central aspect, as Mr Sephton would have it, of the claim for future loss of earnings.[23]I entirely accept the force of Mr Davies' submission that in a case with lengthy oral evidence and cross-examination it is all too easy to pick out particular high spots and as it were present them as the crux of the case.[24]I have no view as to where this appeal may take the Appellant, but it seems to me she is entitled to have the matter examined in this court. I will, therefore, grant permission to appeal on what is the first point taken by Mr Sephton in the skeleton argument. He may think it appropriate to seek leave to amend his grounds so as to make it plain what the central issue is that he says the judge did not deal with.[25]The other points in the case seem to me really to go no further. None, I think, merit permission to appeal.[26]I will, therefore, grant leave only on ground one with a view to that being amended by Mr Sephton in due course.