Smith v Tesco Plc & Ors [2016] EWHC 3252 (QB)

Case No HQ14X00802[2016] EWHC 3252 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 December 2016
Before
DAVID PITTAWAY QC(Sitting as a Deputy High Court Judge)
Between
JULIAN SMITHClaimantTESCO PLCDefendantsROYAL FREE LONDONDefendantNHS FOUNDATION TRUSTDefendant
Giles Mooney (instructed by Slater & Gordon) for ClaimantAdam Clemens (instructed by Hill Dikinson) for DefendantHearing Hearing date: 9 November 2016
JudgmentDavid Pittaway QC :Introduction
[1]The action arises out of an accident which Mr Smith is alleged to have sustained on 22nd March 2011 whilst working at Tesco plc’s Welham Green Distribution Centre, Hatfield, where he was employed as a shunter, moving trailers around the yard. Mr Smith maintains that during the course of a nightshift he collected a trailer from a bay and drove over a sunken fire hydrant situated on the concourse, causing a severe jolt to his back, rupturing a disc. He states that he developed a searing pain in his back when the spring loaded seat on which he was sitting bottomed out on the chassis of the vehicle. Subsequently Mr Smith was taken to hospital, initially to the Luton and Dunstable Hospital, and then the Royal Free Hospital, London, where he was diagnosed with cauda equine syndrome and underwent surgery. He now suffers from double incontinence, persisting numbness and weakness and residual neurological symptoms affecting his left leg.[2]The claim has been brought against the Mr Smith’s employers, Tesco plc, and also the Royal Free Hospital. I am asked to try two preliminary issues in the claim against his employers, Tesco plc. First, whether the Mr Smith sustained the accident in the circumstances alleged, and if I find he did, breach of duty is admitted. Tesco plc initially accepted that the Mr Smith had sustained an accident at work on 22nd March 2011 but now put the Mr Smith to proof as to whether the accident occurred as alleged. Second, whether the alleged accident caused or materially contributed to the development of his cauda equine syndrome. I am not concerned with the claim against the Royal Free Hospital.[3]There are some unusual features of the factual evidence, namely the absence of a contemporaneous accident report form and references to the circumstances of the accident in the medical records. The expert evidence is also in a less than satisfactory state as it appears that the issue on causation did not arise immediately and, therefore, the first two expert reports prepared by Mr Sakka, consultant orthopaedic and spinal surgeon, on behalf of Mr Smith, do not address causation at all. The matter was only considered by Mr Sakka in subsequent correspondence and, after the joint discussion, in a helpful third report, which set out an explanation as to the circumstances in which the cauda equine syndrome arises. Mr Porter, consultant neurosurgeon, on behalf of Tesco plc, then prepared a further report, served shortly before trial, raising a new argument on causation, which arguably is the province of urological not neurosurgical evidence. No urology evidence has been obtained on this issue.

Factual evidence

[4]The background to this claim is that Mr Smith had worked for Tesco plc as a driver or shunter for 17 years. A shunter is a driver who drives a tug, which is a specialised vehicle used to move trailers around the yard. Mr Smith had been suffering from back pain for several days before the alleged accident at the yard on 22nd March 2011. He did not see the need to attend his General Practitioner or the local hospital or to mention it to his employer. He began to experience numbness in the front part of his left leg on 17th March 2011. He noticed the sensation in his leg at work on 18th and 19th March 2011, on the latter date one of the canteen staff observed that he was walking funnily. He went to work on 20th March 2011 when he noticed more discomfort which was intermittent but it did not stop him working. He took ibuprofen.[5]His shift started at 0600 on 21st March 2011 and it was not until about 0330 that he says he experienced a sharp pain in his back after he drove a tug and trailer out of bay 40 or 41, which are shown on the photographs. His recollection is that he drove over a sunken fire hydrant, causing the tug to rise up and down violently. His seat bottomed out on the chassis of the vehicle. Through the assistance of photographs, and videos which I subsequently saw, it was explained that whilst driving the trailer out of the particular bays it was not possible to avoid the fire hydrant which was sunk into the concourse, without striking the trailers on either side. He explained that whilst driving the tug alone out of the bay it would be possible to take avoiding action. The videos of tug being driven over the fire hydrant give an indication of the force of the jolt that would have occurred. He felt a sharp sensation in the base of the back which he described as like a red hot poker in the base of his spine. It was a searing hot sensation. He managed to move one further trailer before deciding that he was unable to continue working.[6]Mr Smith went to the office where he spoke to Ms Keown, a desk clerk, and then to Mr Morris, a transport manager, and explained that he had sustained an accident and was going home. His account is corroborated by Ms Keown’s evidence and to a certain extent by Mr Morris’s evidence. Ms Keown recollects that Mr Smith came in and looked like he was in pain. He came to the front desk and told her that he had sustained an accident shunting. He wanted to go home. As she did not have authority she called Mr Morris with whom she says Mr Smith had a similar conversation. She says that Mr Smith made it quite clear that he had an accident shunting, mentioning the tug and hurting his back. She does not believe that he mentioned the sunken fire hydrant. Mr Morris does not recall Mr Smith saying he had sustained an accident but he does recollect that he said his back was hurting and he wanted to go home. He offered him a first aider and a lift home which he declined. He said that if he had known it was an accident he would have investigated it that day. No accident report form was completed at that time or, indeed, until 28th September 2011. Mr Smith says that it did not occur to him to say immediately after the accident that he had gone over a sunken fire hydrant.[7]Mr Smith started to drive home but realised that he was unlikely to be able to complete the journey when he realised that he had lost all feeling in his left leg. He telephoned his son who came to collect him He arrived home and fell asleep on the sofa in the sitting room, waking about 0645. When he awoke he realised that he had been incontinent, which he described as being of sufficient volume to have wet his socks. He called for his partner who was in the shower and managed to crawl up the stairs. Whilst he was on the bed he was uncontrollably incontinent, when he was able to get to the lavatory he was unable to pass any urine. His partner, Ms Chiswall, recollects that he said that he had an accident at work but does not recollect any further description of the circumstances. She describes him as being very distressed. He was taken by ambulance to the Luton and Dunstable Hospital and then transferred to the Royal Free Hospital, where he underwent spinal surgery.[8]The unusual feature of this case is that the history taken both at the Luton and Dunstable Hospital and the Royal Free Hospital does not include a description of the circumstances of the accident. It would appear that the first time after 22nd March 2011 that there is an account of it is was when Mr Stewart, a work colleague, visited Mr Smith in hospital. Mr Smith explained to him that he had told Mr Morris that he had had an accident when he drove over the sunken fire hydrant. Mr Stewart says that after his visit he pointed out the hydrant to more senior employees at work and it was fixed within a few days. He said that he had complained verbally about the hydrant on many previous occasions. Another manager, Ms Fitzhugh’s evidence did not take matters much further. She conceded that a telephone attendance note dated 10th May 2011 was not written by her but by another employee, Ms Snailham. The note referred to “feels company partially to blame complained about potholes numerous times”. It was not until 28th September 2011 that Mr Smith attended his employer’s offices and Mr Webb completed an Accident Report Form with an account of the accident in two places which is at variance with what Mr Smith has said in evidence and the way in which the case is put. It would appear to have been recorded on the basis that Mr Smith was driving off after he had delivered trailer as opposed to having collected a trailer. The account is signed by Mr Smith and no proper explanation is put forward as to how the discrepancy occurred.

Liability

[9]I have to decide this aspect of the case based on Mr Smith’s credibility in the witness box and the surrounding evidence available to me. I have concluded that Mr Smith is an honest witness who has done his best to assist the court on the circumstances of the accident. I am satisfied that he did drive the tug over the sunken fire hydrant at some time between about 0200 and 0300 on 22nd March 2011 and that he was probably driving the tug with a trailer attached. Notwithstanding the content of the Accident Report Form, it would fit with his description of being able to avoid the sunken fire hydrant when there was no trailer attached but being unable to do so with a trailer attached because of the risk of colliding with other parked trailers in the bays. It would also fit with his recollection that he parked the trailer and collected another trailer before he appreciated that he was no longer fit for work. I am also satisfied that he did tell Ms Keown and Mr Morris immediately afterwards that he had been involved in an accident. The extent to which he went into any detail is less clear cut and it may well be that Mr Morris was left unclear as to what had occurred. Where there is a difference between Ms Keown’s and Mr Morris’s account I prefer Ms Keown’s account. I do not attribute much importance to the fact that the circumstances of the accident are not referred to in the hospital records. Mr Smith was clearly distressed and no contrary account was advanced in the clinical notes. I accept Mr Stewart evidence as to what was said at his meeting with Mr Smith a few days after the accident. As I have already said I did not derive much assistance from Ms FizHugh’s evidence, or indeed that of Ms Miller, who was also called to give evidence. As to how or why the Accident Report Form came to be only completed on 28th September 2011 there is no proper explanation.

Causation

[10]I now turn to the expert evidence of Mr Sakka, consultant and orthopaedic and spinal surgeon, on behalf of Mr Smith, and Mr Porter, consultant neurosurgeon, on behalf Tesco plc.[11]Mr Sakka considers that the initial sciatic pain reported initially was indicative of degenerative lumbar disc disease and a weakness in one of the lumbar discs which caused it to bulge, affecting one of the roots to the leg. He noted that the level of symptomatology was not severe enough to prevent him attending work. He considers that during the accident on 22nd March 2011 Mr Smith’s back was subjected to extra stress which caused the pre-existing disc to bulge further, causing acute cauda equine syndrome. Mr Sakka does not consider that before 22nd March 2011 Mr Smith displayed any of the signs or symptoms indicating cauda equine syndrome. He describes those symptoms as bilateral sciatic pain, urinary symptoms, altered sensation in both buttocks or the perianal area or loss of perianal sensation. He went onto say that the first time Mr Smith developed cauda equine syndrome, as opposed to was developing it, was when he awoke incontinent on the sofa. He considers that there was significant stressful loading on his back to cause the rapid deterioration leading to cauda equine. At some stage the disc ruptured and the disc material sequestrated centrally, which Mr Sakka believes is demonstrated on the MRI scan, resulting in the direct compression of the central nerve roots in the cauda equine, causing cauda equine syndrome. He does not consider that he would have developed cauda equine without a significant overloading insult to his spine.[12]Mr Sakka defines the ongoing process of cauda equine syndrome in the following stages:
“the first is cauda equine suspected where the patient has bilateral leg pain by irritating the nerve root. Then as the process progresses the second stage is incomplete CES where there is altered sensation to the perianal area, but control of the sphincter muscles to the bladder/anus remains functional where the patient can still control initiating micturition, passing wind or defecation. The third stage is cauda equine retention where the sensation in the bladder and the perianal area are compromised so that the patient has painless retention of urine but the function of the cauda equine nerve is not completely lost. The final stage is cauda equine complete where the nerves to the bladder and anus no longer function and the patient becomes incontinent of urine and anal muscle tone is lost.”
[13]Mr Sakka considers that Mr Smith’s incontinence occurred because the cauda equine syndrome was already complete at the time when it occurred. He considers that the syndrome was incomplete when Mr Smith attempted to drive home after the accident. He does not consider that there is evidence of two sequestrations of the disc. He is unable to state when the bladder became neurologically compromised but he considers that it was after Mr Smith left work. He does not consider that Mr Smith was in retention before 0345 at which time he had no red flag symptoms. He did not have bilateral sciatica or numbness in his buttocks.[14]Mr Porter’s first report considered condition and prognosis and causation, particularly whether the Mr Smith’s condition arose as a consequence of the accident on 22nd March 2011 and was causative or made a material contribution to his condition. His opinion is that the Mr Smith was going to progress to cauda equine syndrome in any event and that the index event made no material contribution to the development of cauda equine syndrome. In the history he took from Mr Smith there is reference to an entry which states that at 0230 on 22nd March 2011 he noted numbness over the left buttock, otherwise the taking of the history is uncontroversial. There is an issue on credibility as to whether the Mr Smith did tell Mr Porter when he saw him in consultation on 21st March 2015 that he had noticed numbness over his left buttock at 0230 on the day in question. Mr Smith is clear that he did not experience numbness in his buttocks before the accident. It seems to me that it is unlikely that Mr Porter incorrectly transcribed what Mr Smith told him but, equally, I am satisfied that if Mr Smith did say what is recorded he was muddled, five years after the accident, as to the symptoms from which he was suffering at the relevant time. In my view that note is likely to have had some bearing on the opinion that Mr Porter expressed in his first report. If Mr Smith had experienced numbness in his left buttock before the accident, it is common ground that it would have been an indication that he was already suffering from a red flag symptom.[15]Mr Porter refers to two categories, incomplete and complete cauda equine syndrome. It is the second which the first part is the onset of painless urinary retention and overflow incontinence when the bladder is no longer under executive control. In his first report he also refers to the record of the neurosurgical registrar at the Royal Free Hospital that Mr Smith had the onset of bilateral sciatica and urinary incontinence at midnight. He is referring to the note made by Mr Antwy Weboah which reads “last night bilateral sciatica 21/3/2011. Buttocks numb. Urinary incontinence at 0000 22/3/2011”. It appears that perhaps based on this note he concluded that prior to the index event Mr Smith had the onset of central sacral nerve root irritation with bladder dysfunction. That note cannot reflect what, in fact, actually happened. It is inherently unlikely that Mr Smith was suffering from urinary incontinence whilst he was driving the tug, about three hours before the accident. It is also contrary to Mr Smith’s own evidence. Again I consider that the information in this clinical record may have had some bearing on Mr Porter’s opinion.[16]The joint statement agreed that Mr Smith had symptoms of low back pain with radicular features affecting the left leg prior to the accident in 22nd March 2011 consistent with posterolateral disc protrusion. They are agreed that Mr Smith’s “onset of symptoms of severe low back pain and subsequent symptoms of cauda equina with an acute onset with rapid progression following the index event, are in keeping with [Mr Smith] having suffered a sequestered fragment at the time of the index event.”. They are agreed that the entries in the hospital records are contradictory and required clarification. No further witness evidence has been provided. Otherwise they maintained their respective positions on causation set out in their reports. There is no mention of urinary retention in the joint statement.[17]Shortly before trial Mr Porter produced a further report in which he continued to maintain that the Mr Smith was already in the cauda equine syndrome before the accident on 22nd March 2011. His opinion, however, was based upon a new hypothesis, namely that the two episodes of incontinence after 0600 were in keeping with overflow incontinence and as a result Mr Smith had already entered cauda equine syndrome in retention some hours before the accident. He postulates that overflow incontinence will occur where patients have a bladder volume of 800-1000 mls some hours after the onset of bladder paralysis. He considers that it would take a number of hours to establish that level of urine. He considers that there would be distress at 400 mls of urine in the bladder and retention at 500 mls. He speculates that Mr Smith had a full bladder at the time of the index event. He defers to the opinion of an urologist but adds that a neurosurgeon is expected to recognise and manage immediate bladder problems associated with the condition. He considers that Mr Smith’s acute back pain immediately after the accident arose as a consequence of a further additional sequestered fragment of disc, which had no material effect on his outcome.[18]Both experts are agreed that cauda equine is a very rare condition but that disc degeneration is very common as is disc prolapse. Mr Porter accepted that most people who suffer extrusion or sequestration do to not go on to develop cauda equine syndrome. He accepts that Mr Smith did not display symptoms until after the index event. Where he differs from Mr Sakka is his view that he developed urinary retention as a result of a sequestration of the disc before the accident, which was caused by another event or spontaneously to a vulnerable disc. He considers that the disc fragment move inferiorly compressed the central nerves at some point during the evening of 21st March 2011. He accepts that urinary retention is central to his opinion. He also accepts that at the time he prepared his first report urinary retention did not appear to him as central to the case. He also accepts that he has not met a case of this type in his clinical practice.[19]After careful consideration I have preferred the evidence given by Mr Sakka to that of Mr Porter. The opinion in Mr Porter’s first report, in my view, is largely based on two factors that have turned out not to be correct, namely, the note made by the neurosurgical registrar at the Royal Free Hospital that Mr Smith was incontinent at midnight before the accident and his own history that Mr Smith was experiencing numbness in his buttocks at 0230. On any view the neurosurgical registrar’s note cannot be correct and must have been an incorrect transcription or relaying of the history that Mr Smith gave him. I have already concluded that Mr Smith probably incorrectly relayed his history to Mr Porter on 21st March 2015.[20]There is no suggestion in Mr Porter’s first report that he considered that the Mr Smith was in urinary retention at the time of the accident. His opinion, as I think he recognises, is at the boundaries of his expertise when he gave evidence about the amount of urine that was required to be retained before it overcame the muscular controls of the body. The late advancement of this opinion is, in my view, very unsatisfactory and if a live issue should have been considered at a much earlier stage and permission sought to rely on urology evidence. It defeats the purpose of exchange of expert evidence and joint discussions between experts if experts raise new theories shortly before trial. It seems to me that Mr Sakka’s explanation is correct that by the time that Mr Smith’s urinary incontinence occurred the cauda equine syndrome was complete. There is an inescapable logic that when he went upstairs he was uncontrollably incontinent and once he had found the lavatory he was unable to pass urine because, at that time, there was no more urine to pass.

Conclusion

[21]In these circumstances I have reached the conclusion that Mr Smith, who was suffering from a vulnerable back, sustained a sequestered disc when the one or more wheels of the tug struck the sunken fire hydrant on 22nd March 2011. I reject the theory postulated by Mr Porter that Mr Smith was already in urinary retention by the time of the accident. There is nothing to suggest that he was suffering from red flag symptoms of cauda equine syndrome before the accident, or indeed, that he was unable to carry out his duties before that time. It follows that I am satisfied, on the balance of probabilities, that the accident caused Mr Smith’s cauda equine syndrome.

Cited in 1 later judgment