ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Royce)
(Judge Machin)
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
THE PRESIDENT OF THE FAMILY DIVISION
(Dame Elizabeth Butler-Sloss)
LORD JUSTICE BROOKE
Vice President of the Court of Appeal, (Civil Division)
LORD JUSTICE LATHAM
PAUL ANDREW MAJOR
Respondent/Claimant
-v-
PETER ERNEST LEONARD LAMYMAN
Appellant/Defendant
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MR. A. BERRISFORD (instructed by Messrs Langleys, Lincoln) appeared on behalf of the Appellant.
MRS M BICKFORD-SMITH QC (instructed by Messrs Ashton Bond Gigg, Nottingham) appeared on behalf of the Respondent.
J U D G M E N T
LORD JUSTICE BROOKE: This is an application by Peter Ernest Leonard Lamyman for permission to appeal from an order made by Royce J sitting at Nottingham on 14th March 2003, when he allowed an appeal by the claimant, Paul Andrew Major, from the judgment of Judge Machin in the Lincoln County Court on 5th April 2001. Judge Machin had dismissed the claimant's action, which arose out of an accident at work that took place on 29th July 1992, and the effect of Royce J's order was to direct a retrial as to the issue of liability.
This would be a second appeal if permission to appeal were granted. The first appeal was heard by a High Court judge because the action was not transferred to the multi-track after the Civil Procedure Rules were introduced. On 17th April 2003 Hale LJ directed that the defendant's application be listed for oral hearing on notice with the appeal to follow if permission was granted. She said that on the information available to her, it was strongly arguable that the judge applied the wrong principles to his appellate task, and that if he did, this would justify a second appeal.
I turn first to Judge Machin's judgment. He found that the claimant was employed by the defendant as a tractor driver on his Lincolnshire farm. He had been working on the farm in this capacity since he left school at the age of 16, and was very familiar with tractors. He had his accident when he was climbing up to drive a Massey Ferguson tractor which the defendant had acquired six months earlier. It was a dry day, and the claimant was working in the grain stall loading wheat into a trailer. He had reached a stage in his work when he had to move the trailer so that it would fill up at the rear. There were three metal steps leading up to the cab. Each step consisted of three bars. Whereas the inner and middle bar were serrated, the outer bar was smooth. This was apparently a government requirement in the country in which the tractor was manufactured. There were no stops at the side of these steps. The claimant's case was based on the lack of serration on the front bars, and the absence of outer bars at the sides of the steps, particularly the middle step.
The judge preferred the evidence of the three medical witnesses called on behalf of the claimant. He found that the claimant had suffered a direct blow to the medial femoral condyle of his right knee, which had caused an injury to the articular surface and the cancellous bone. The question the judge had to decide was: How had the claimant suffered the injury? The claimant maintained that when he placed his foot on the middle step, his foot slipped off the right hand edge of the step, with the result that his right leg plunged downwards. His foot hit the concrete and the inside of his right knee hit the middle step. The defendant maintained that the accident happened because the claimant did not watch where he put his feet, and that his foot did not slip off the side. When I say that was what the defendant contended, no evidence was called by the defendant on the trial on the facts, and the evidence before the judge consisted of Mr Major's account of the accident and the expert evidence. In a letter the defendant wrote on 3rd August 1992, which was presumably based on what the claimant had told him, he said the claimant had struck his right knee when his right foot slipped from the middle of the three steps.
The judge resolved the issue by relying on the evidence given to him by Mr Bradnock, who was one of the claimant's medical witnesses. Mr Bradnock said that for the damage to his right leg and knee to have been sustained, the femur and tibia would have had to be at right angles to each other at the time of impact. This was the only way in which that area of the knee could have been exposed to such an impact.
The judge said that this proposition was inconsistent with the claimant's account of how the accident had happened. If he had pulled his weight up to put his right foot on the middle step by using the handrail, as he described, and his foot had slipped off the side of the step, with his weight partly on it, his leg would have gone straight down, and indeed would have straightened in the fall. It could hardly have straightened in the fraction of a second which represented his fall and then been pulled back into a kneeling position. In these circumstances, the judge found that the accident happened because the claimant simply did not watch where he put his feet. He dismissed the action.
On the first appeal Royce J was influenced by an argument that Mr Bradnock had in fact believed that the hypothesis he advanced about the way the accident happened was consistent with the claimant's version of events.
The critical questions and answers ran along the following lines. First, in answer to the judge in cross-examination:
Judge: "I think [counsel's] point is that for that to have happened the bottom part of the leg would have had to be at the angle that is in your model.
A. If it was hitting that weight bearing area.
In other words, the bottom part of the leg would have to be at right angles virtually?
A. If I go back to the chair model, you are climbing up the step, initially your leg is at 90 degrees, your boot slips off, and you are like that.
Q. So that is almost 90 degrees is it not?
A. Yes."
Mr Bradnock then completed his evidence but he was subsequently recalled after the defendant's medical expert had given evidence to demonstrate how the claimant could or would have sustained his injury. During the course of the demonstration there was the following exchange with the judge:
"Q. But is it your evidence -- I think I or somebody asked you about it yesterday -- that that situation only arises when the femur and the tibia are more or less at right angles to each other?
A. When the femur and the tibia at that weight bearing area is exposed, and in my evidence I said that this was one of those possibilities. The bar could strike the patella tendon, the patella or the medial femoral condyle.
Q. But the question is: does that presuppose that the tibia and the femur are at something approaching a right angle to each other in order to achieve the exposure?
In order to achieve the exposure where the chondral defect is present in Mr Major's knee, yes.
Judge: Thank you very much, that is what I wanted to know."
There were no further questions put by counsel after that passage of Mr Bradnock's evidence.
Mrs Bickford-Smith QC, who has appeared for the claimant throughout, submitted to Royce J that Judge Machin may have fallen into error by reaching what he said was a common sense conclusion in the face of the medical evidence that he had heard. It had never been put to Mr Bradnock that his hypothesis was inconsistent with the claimant's version of events. Royce J considered that the initial cross-examination involved testing his evidence to see if it was indeed consistent with that version. When he was recalled, the judge did not suggest to him in the question that he put that what he was advancing was not tenable in the light of the claimant's version of events.
Royce J said that this was potentially a large claim, and he was left with an uncomfortable feeling that the matter had not been dealt with as fully and properly as it might have been. If the matter had been put fairly and squarely to Mr Bradnock, it might well have been that he would have been able to demonstrate that the medical findings he advanced were entirely consistent with the claimant's account. On the other hand, if the matter had been explored fully with him in cross-examination, it might have been the case that he would not have been able to sustain the claimant's version of events.
The judge did not say that Judge Machin's judgment was wrong, or that his decision was unjust because of a procedural or other irregularity in the course of the trial (see CPR 52.11(3) for these criteria). He said:
"It is always easy, in looking at a matter such as this after the event, to say that matters could have been more fully expressed and reasoning could have been set out with greater clarity, but I am driven to the conclusion in this case that what is set out in the judgment does in some respects fall short of what is necessary and in consequence I have come to the conclusion, not without considerable hesitation, that I am compelled to allow this appeal."
His order was in due course ineptly drawn, because it merely recorded that Judge Machin's order was set aside, without giving a direction that the issue on liability be reheard.
Mrs Bickford-Smith showed us how the notice of appeal to the first appeal court did rely on the formulae for an appeal court's intervention, to which I have referred. It was also being contended that it was impossible to understand why Judge Machin had dismissed the claim. Reliance was placed on such authorities as English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 240 at [6]-[7] and [15]-[21]; and Willett v Marks and Spencer plc [2002] EWCA Civ 1`427 at [33]-[34]. She suggested that once the judge said that he accepted the claimant's medical evidence, it inevitably followed that the claimant's own evidence to the effect that his leg was bent as it hit the step must be correct.
In her oral submissions today she has developed her case along the lines that the judge did not give proper reasons and the claimant did not know why he had lost the case. In particular, paragraph 19 of the Master of the Rolls' judgment in English was said to be relevant:
"It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
I do not wholly understand Mrs Bickford-Smith's submissions on the facts of this case. Even if the claimant's doctors' evidence was preferred when they described the medical consequences of the accident, and when the judge rejected the rival version in medical terms as to what had occurred, counsel for the defendant was entitled to explore with Mr Bradnock his view as to the likely aetiology of the accident. In his first report Mr Bradnock had simply recited Mr Major's history of what happened:
"He put his left foot onto the lower rung, holding onto the railing with his left hand. When he lifted his right foot onto the second step, his right foot slipped sideways and he fell heavily, injuring his right knee during this fall against the second step of the tractor. He grabbed onto the railing to prevent himself falling backwards but in spite of this he landed on the ground. He had immediate severe pain in his right knee which started to swell immediately."
Questions were quite properly put to Mr Bradnock for the purpose of discovering whether an injury of this severity could have resulted from an accident which happened in the way Mr Major has described. Judge Machin returned to this question after hearing the evidence of Mr Hoyle, the medical expert for the defendant who made the point which ultimately appealed to the judge. Mr Bradnock's answers led Judge Machin to conclude that an injury of this severity could not have happened in the way that Mr Major had described. In my judgment, going back to what the Master of the Rolls said in the English case, the judge did record the matters that were critical to his decision. He made it clear that he could not accept Mr Major's account of how the accident occurred and he was driven to the conclusion that this was the kind of accident that was capable of being caused by simply not watching where one put one's feet. There are no grounds in my judgment for contending that the judge was wrong in coming to this conclusion, nor can I see any error in procedure in the way in which the answers to the questions were elicited. The judge described quite clearly why he was dismissing the claim.
For these reasons I would grant permission to appeal on the basis that the appeal raises an important point of practice; alternatively, for another compelling reason, because appellate judges must not reverse first instance decisions for reasons as thin as those given by Royce J, who did not expressly or impliedly refer to either of the grounds on which an appeal court can properly intervene. For the reasons I have given, now that it is for this court to form its view on the merits of the original appeal, I would allow this appeal and restore Judge Machin's judgment.
LORD JUSTICE LATHAM: I agree.
THE PRESIDENT: I also agree.
ORDER: Application for permission to appeal granted; appeal allowed; order of Judge Machin set aside; costs to be the appellant's costs here and in the first appeal; legal aid taxation.