Bouchouk v Ministry of Defence [2009] EWHC 2614 (QB)

[2009] EWHC 2614 (QB)Case No HQ08X02154
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/10/2009
Before
THE HON. MR JUSTICE COOKE
Between
LAHCEN BOUCHOUKClaimantMINISTRY OF DEFENCEDefendant
MR PETER SKELTON (instructed by Beachcroft LLP Solicitors) for defendantMS SAMANTHA PRESLAND (instructed by Irwin Mitchell Solicitors) for claimantHearing Hearing date: 19.10.2009
Judgment
[1]The Claimant was employed by the Defendant as a labourer at the electronic repair workshop at the Royal Naval Dockyards in Gibraltar. On the 10 November 2004, the Claimant was instructed by another employee of the Defendant to assist in pulling a short supply electricity cable out of the water. Such an order was inappropriate and, as a consequence of attempting to lift the cable, the Claimant suffered an injury to his left shoulder, for which the Defendant accepts liability.[2]The issues between the parties relate to causation and damages. The particulars of injury in the Claimant’s statement of case allege that he sustained a sprain to his left shoulder and soft tissue strains to the left side of his neck. It is accepted that he had a previous existing weakness in his left shoulder and that the neck and shoulder symptoms were accelerated by three years. The effect, it is alleged, was that the Claimant could only do light duties following the accident, for which he was paid at full rate, but was medically retired on 15 September 2006 whereas, if the Defendant had not been negligent, he would have been medically retired in April 2009 in consequence of his pre-existing medical condition.[3]At the end of the evidence, Counsel for the Claimant realistically accepted that the latest date for which she could properly argue, for such hypothetical medical retirement, was April 2008.

The Claimant’s Medical Background

[4]What is abundantly plain from the medical records which have been produced is that the Claimant had, over the years, both back problems and shoulder problems prior to the accident in November 2004. As far back as 1985, there is reference to back problems which continue in 1986, 1988, 1989, 1990, and 1991. In the course of 1991, there appear to be recurring back problems on four occasions, two of which necessitated a week off work. Once again in 1993 there was another week off work for back problems and shorter periods in 1995 and 1997. Thereafter, there appears to have been no particular issue until 2003.[5]The medical records reveal problems with his left shoulder in 1989 when on three occasions he had heat treatment, was given medication and embrocation. In July 1992 he complained of a painful shoulder which, the medical notes show, he attributed to pulling cables two days before which were not particularly heavy. Similar treatment was again prescribed. In July 1998 he complained of pain in the left shoulder which he had had for the past three weeks, which kept him awake at night and in 2001, in May and June, there are references to continuing pain in the same shoulder and a restriction being imposed on his duties at work in consequence. Anti-inflammatory drugs were prescribed but he complained of “grating” of bones in the shoulder.[6]In 2002 there was a recurrence of joint pain in the left shoulder and ,once, work restrictions were imposed for a period in excess of a week. He had physiotherapy treatment and medication. In May 2003 he again complained of pain in the neck and shoulder which was diagnosed as capsulitis. This was said to have been going on for two years but had become more severe in the previous two weeks. He had previously managed with analgesia.[7]During the course of his evidence, the Claimant spoke of an accident which had occurred on 16 August 2002, in which his neck, upper shoulder and back, had sustained injury. That was not a matter referred to in the medical evidence, nor in the report of the Consultant Orthopaedic Surgeon engaged by him for the purposes of this action.

The Expert Opinion

[8]Mr Slowik, a Consultant Orthopaedic Surgeon, examined the Claimant on 3 July 2007. He drew attention to the records of the Claimant’s condition following the accident and the references to the Claimant having an aching shoulder for two to three years. There was no reference, following the accident, to any neck pain until August 2005, some nine months later. The Occupational Physician’s report in September of that year referred to “a degree of over-reaction” on the part of the Claimant and to the Claimant’s reluctance to make any movements of his cervical spine or his left shoulder. The occupational Physician was strongly suspicious that the primary problem was that of a cervical injury and maybe even an acute disc. Whilst he was unfit for work, it was not thought that the shoulder was the real problem by this stage. An MRI scan in October 2005 showed a left-sided postero-sagittal disc protrusion at the C6/7 level with a narrowing of the exiting foramen, which was confirmed in a formal report of an MRI scan on 22 June 2006. Degenerative changes were found there in the cervical spine but no significant problems could be seen with the shoulder itself.[9]Both an Orthopaedic Surgeon, in November 2006, and Mr Slowik, some 8 months later noted that the Claimant stood or sat with his neck heavily slanted to the left, his right shoulder elevated with a resultant thoracic curve apex to the right. He sat in a similar position in court at trial.[10]Mr Slowik’s report, which was not the subject of cross-examination, was amplified by a letter dated 7 April 2009 in answer to questions posed by the Defendant’s solicitor. The neck symptoms, which were not mentioned for 9 months following the accident, had become the dominant symptoms and, in the words of the Expert, were “not necessarily related to the index accident”. He said, however, “one could argue for a postural onset of his neck symptoms by virtue of his persisting painful right (sic) shoulder symptoms in the presence of a pre-existing significant condition affecting his neck”. The long-standing degenerative changes affecting the C6/7 level with a disc prolapse were not clearly associated with the accident, as symptoms would have been clear-cut had that been the case. Whilst paragraphs 8.5 and 8.7 of the Opinion did not sit well together, the letter amplified Mr Slowik’s view:
“As his left shoulder symptoms were still present and quite significant at 9 months following the accident, it is not unreasonable to suggest a postural cause for the onset of his neck symptoms by virtue of the significant pre-existing but asymptomatic (as far as is known to me) condition affecting his neck, provoked by postural affect due to his now longer standing left shoulder symptoms and altered use of his left arm.”
[11]Mr Slowik said it seemed “not unreasonable” to suggest a three year acceleration of his symptoms as a result of his involvement in the accident. Prior to it he had been working uneventfully apart from intermittent episodes of discomfort and time off. Thereafter, he was only able to cope with lighter duties but his pre-existing neck condition would have prevented him from working in about November 2007.[12]It was perhaps unfortunate that the Expert was not called to give evidence in the light of the Claimant’s own evidence, but both parties were prepared to argue their case on the footing of his existing opinion. The Defendant maintains that the Claimant has failed to prove causation because of the tentative nature of the comments made by Mr Slowik and the undermining effect of the Claimant’s own evidence, which I found unreliable. The expert appeared to be putting forward an hypothetical argument (“one could argue”, “not unreasonable to suggest”) rather than giving a straightforward opinion. In consequence it could not be said that, on the balance of probabilities, the neck problems had emerged as a result of the shoulder injury sustained in the accident.

Further Medical Evidence

[13]No medical records were disclosed, but Mr Slowik was told, and the Claimant himself gave evidence at the trial, that he had suffered a heart attack in June 2007 which had necessitated an emergency trip to hospital in Morocco, for an angioplasty and stents. It took a period of two months for him to recover from that.[14]It was in consequence of this that Counsel for the Claimant accepted that this would inevitably have led to his retirement. Give the employment practices of the MoD, however, she suggested this would take some time and he would not in fact have been the subject of medical retirement until April 2008, since the Defendant would have given him some time to see if he could work on light duties.

Conclusions as to Causation

[15]Although Mr Slowik was not fully appraised of the Claimant’s past medical history, he was aware that the Claimant had encountered previous problems, both with his back and shoulder. Whilst his conclusions are expressed in an unfortunate manner, the letter which amplifies the opinion shows that his overall view is that the injury to the Claimant’s shoulder, caused by the Defendant’s admitted negligence, did lead to him adopting a strange posture which then impacted on his existing degenerative neck condition. In consequence, if the Defendant had not been negligent, the Claimant could have continued to work until November 2007.[16]In my judgment, it is plain that medical retirement would have occurred by that point for two reasons. The first is that the neck symptoms would have become apparent long before then so that the process initiating medical retirement would have been put into operation at an earlier date but secondly, and more importantly, the heart attack which occurred in June 2007 would inevitably have resulted in a cessation of employment by November. It would have been abundantly plain, once the heart attack occurred, that there was no possibility of him continuing in work.

Failure to Mitigate

[17]The prolapsed cervical disc, from which the Claimant suffers, according to Mr Slowik’s report, would respond extremely effectively to surgery. The Claimant declined surgery. In evidence, he said that the reason was that he was told that there was not a 100% chance of success and that there was the possibility that he might end up in a wheelchair. I would have had no hesitation in finding that this was a failure to mitigate had the Claimant been an educated man, since it is well-known that doctors will not guarantee success and will always advise of the risks, however, remote they may be. The Claimant would, as a Moroccan, have had to pay for the operation, if it was done, so that slightly different considerations apply to him from someone who could rely on the NHS. Impecuniosity was not put forward as a reason for not having the operation done but, the burden being on the Defendant to establish a failure to mitigate, I was not ultimately satisfied that this was a finding I should make.[18]Whilst the Defendant could point to the MRI scan, dated 22 June 2006, showing the degenerative changes and disc protrusion in the cervical spine, there was no evidence before me as to the advice the Claimant had received, other than that which he gave, nor of the date when such advice was given. Whilst it might be thought that he could have agreed to have had the operation done during the course of 2006, so that damages would only run to that point, the absence of clear evidence on this aspect persuaded me that I should not make the finding for which the Defendant asked.

Damages

[19]My findings on causation take effect in relation to the claim for loss of earnings and past and future pension loss. The agreed figure for loss of earnings until November 2007 is £13,709.79. It may well be that the interest figure on this can also be agreed. So far as the pension losses are concerned, it is agreed between the parties that, on the basis of my finding, the figure should be £10,295.84. DIY[20]The claim was made that the Claimant had been unable to paint his house since the accident and had been unable to undertake DIY projects. In 2005 and 2007 he had to pay £800.00 to someone to paint his house instead of doing it himself. He also paid £200.00 each year for DIY assistance for work he would otherwise have done himself.[21]The Claimant’s evidence on this was unsatisfactory, even allowing for language difficulties. He appeared to accept in cross-examination that he had, prior to the accident, paid for other people to paint his house, whilst his adult sons stood around and watched. Moreover, the evidence in support of such payments was wholly unsatisfactory since, despite the Defendant pointing out in its Schedule of Loss that the Claimant had provided no evidence of the work or expense, and an Order of the Court that all evidence be produced by the 29 May, it was only in the last week that a letter dated the 8 October from a Mr Karmass was produced. In that letter he confirmed that he had painted the Claimant’s house in 2005 and 2007 and was paid £800.00 on each occasion and that since late November 2004 he had been paid about £200.00 in each year in respect of miscellaneous DIY jobs at the house.[22]The Claimant was unable to say when his house had been painted and accepted that it was done whenever it appeared necessary. He was not able to say whether it was every two years or every four years but he referred to the number of bedrooms and said that it would be done whenever it looked dirty or untidy. From this it is to be inferred that he was talking about internal redecoration and I find his case unproved in relation to all of these expenses, both the house painting and the miscellaneous DIY.

Care

[23]The claim was made for: “Extra assistance with domestic chores, gardening etc. from family members along with some assistance for his own personal care. He estimates this to be approximately three hours per week for extra care and that he is unable to help with chores amounting to about a five hour loss of his services per week”.[24]In his statement, in support of these items he said that since the date of the accident he had been unable to help out around the home with domestic chores such as general cleaning and laundry, and that his wife now covered that work in addition to her existing work loads. He estimated that he used to carry out around 5 hours of help per week. Under cross-examination, however, it became plain that he lived in Gibraltar and went home only when on leave, a total of five weeks a year. When home he said he used to assist with the shopping and cleaning the floor. Five hours help per week for a total of five weeks could therefore, at most, amount to 25 hours per annum at the £5 per hour rate claimed.[25]In his statement he also stated that he had to rely on the gratuitous care and assistance from family and friends in relation to many matters ranging from personal hygiene to carrying shopping. He estimated that the average amount of time which he received was about three hours per week.[26]Once again, the Claimant’s evidence was unsatisfactory. Whereas his statement appeared to imply that he lived at home and, as a result of his injuries, was unable to assist his wife at home, and others then had to assist him at home, it transpired that he had not only been living in Gibraltar, whilst his wife and family were in Morocco, but that in Gibraltar a man had been staying with him who had been doing the cleaning of the house and helping him out in any event. I was unable to accept that he had any claim at all in relation to his inability to help his wife since I do not accept that, when he went home on holiday, he provided any assistance in general cleaning and laundry for which a payment would be appropriate. As he returned on holiday, it seemed to me, inherently unlikely that he would carry out such functions and the unreliability of his evidence meant that I could not accept what he had to say on the subject.[27]With regard to the three hours a week for extra care for the Claimant in his injured condition, I am prepared to give him the benefit of the doubt, notwithstanding the unsatisfactory nature of the evidence. The figure which arises here therefore is £5 x 3 per week for three years = £2340.

General Damages

[28]The Claimant claims general damages for pain, suffering and loss of amenity in the sum of £10,000 which is broken down by the Claimant into £8,000 and an additional £2,000 for loss of amenity suffered in losing contact with colleagues after 27 years with the Ministry of Defence.[29]It is customary to award damages for pain and suffering and loss of amenity in a lump sum taking into account all the relevant factors. I was referred to a number of cases by way of comparator but the starting point must be the JSB Guidelines in relation to the damage directly caused, namely the sprained shoulder. As I have already indicated, Mr Slowik’s opinion was that the Claimant had sustained a sprain of his left shoulder with a past history of lesser shoulder symptoms. Following the accident there was local tenderness and a reduced range of motion and biceps tendonitis. An X-ray of the shoulder on the 4 April 2005 and the MRI scan of the left shoulder showed nothing significant. This injury would therefore fall into the bracket shown at paragraph C(c) at p.34, dealing with shoulder injuries, namely £5,000 - £8,100.[30]The Defendant argued that it should be at the bottom end of the scale given the previous problems, including the accident in 2002 and the capsulitis from which the Claimant had been suffering for two or three years, although previously accepting in the schedule of loss a figure of £6,000.[31]Looking at matters in the round, it seems to me that the Defendant’s initial approach put the general damages at the right level and I award the sum of £6,000 for general damages, for pain and suffering and loss of amenity, taken together. In this connection I found the decision of Leon Fulford v Chan (2008) LTLPI 7/11/2008 a good comparator where damage to the shoulder had similarly accelerated the previously asymptomatic degenerative cervical spine symptoms by three years. I found the authorities relied on by the Claimant less compelling. In Sauthworth v JR Birkett & Sons there was a more serious injury that required open surgery. In Simmonds v Le Frog Bistro Ltd there was no pre-existing condition and there was psychological injury, permanent scarring in addition to the pain in the shoulder. In Shepherd v St Catherine’s Preparatory School, there was an acceleration of retirement date by reason of the accident but, once again, no pre-existing problems.

Consequential Orders

[32]There will be interest on loss of earnings and the care element which, I hope, the parties will be able to agree. There may be issues about costs also but these too may be capable of agreement. If an agreed Order can be produced, so much the better, and I will sign it without the need for the attendance of the parties. If there are matters which need to be argued, they can either be dealt with on paper or a date can be fixed for a hearing, at the convenience of Counsel who should liaise with my clerk.