Russell v Wincanton Ltd

LORD JUSTICE KENNEDY: This is a defendant's appeal from a decision of Mr Recorder Burrell QC, sitting at Leeds as a Deputy Judge of the High Court, who, on 1 November 2002, ordered that judgment be entered for the claimant in relation to the issue of liability with damages to be assessed. There were also orders in relation to costs and other matters with which I need not for the moment be concerned.

The claimant was born on 31 March 1943, so he is now nearly 60 years of age. On the night of Wednesday 17 to Thursday 18 June 1998 he was working for the defendants as a driver at their depot at Trafford Park, Manchester. Together with a fellow employee named Riley he was involved in shunting an articulated lorry so as to present the rear end of its large box trailer to one of many loading bays. When the rear end of the trailer was a few feet away from the platform of the loading bay the trailer had to be halted and its rear doors opened and secured to the sides of the trailer.

It is the claimant's case that it was at that stage that an accident occurred. He unfastened the door on the right-hand side when looking at the back of the trailer and then turned his attention to the left-hand door which he opened fully and pinned to the side of the trailer. Inside the trailer there were large boxes on pallets, and they should have been prevented from sliding back against the doors by metal load bars, about 8 feet long and 1 to 2 inches in diameter, slotted in position horizontally across the body of the trailer just inside the doors. According to the claimant, the bars had not been put in position. They had simply been thrown on top of the boxes so that when he opened the right-hand door, with the trailer standing on a slight uphill slope, the bars slid out and he had to move his head sharply to try to avoid them. His evasive action was not entirely successful. He sustained a glancing blow to his left temple and the movement of his head stretched his already diseased left carotid artery. That released a plaque or clot which reduced the flow of blood to the left side of the brain. In other words the claimant suffered a stroke, although the initial manifestations of disability were not severe. He completed what he was doing, and when the trailer was properly positioned he uncoupled the tractor unit and got back into the cab so that he could go off with the driver, Riley, to another trailer.

The claimant did not complain to anyone at that stage, but he found that he could not deal with paperwork required of him. When he went home at the end of the shift he could not speak properly. His wife saw him at about 8 a.m. on that Thursday morning and noticed that his speech was strange, but she went off as planned to spend the weekend with her daughter in Leeds and did not return until about 4.30 p.m. on Sunday 21 June. While she was away she spoke to her husband a couple of times on the telephone and noticed that his speech was still strange and that he was uncommunicative.

He worked as usual on Thursday night and again on Friday night. On that Friday evening, 19 June 1998, he was working with Mr McKenna, and in Mr McKenna's opinion the claimant was not his usual self. He did not want to talk, but eventually he said that a load bar had fallen and hit him on the head. Mr McKenna suggested that he should go home but he would not. Mr McKenna spoke to the shift manager, Mr McNeil, who, according to Mr McKenna, said that it was a matter for the claimant. According to Mr McKenna, the claimant was only speaking bits of words, and taking time to get out a sentence.

According to the claimant it was on Sunday morning 21 June that he reported what had occurred to three managers, including the shift manager Mr Cook, who he took outside to show him what had happened. Mr Cook did not give evidence at the trial but his statement was read in which he admitted completing three records, all dated 20 June 1998, that is to say the Saturday.

One of those records was the Accident Book in which - in response to the question "How did the accident happen?" - Mr Cook wrote:

Mrs Russell said that when she returned home at 4.30 p.m. on Sunday 21 June the claimant was asleep and not communicating well. He spoke about "bang" and "bar".

On the following day Monday 22 June he was seen by his general practitioner, Dr Proctor, who recorded:

According to Mrs Russell, she had not fully understood what had happened, so she borrowed some toys from the school where she worked. On Sunday 28 June - with the aid of a toy lorry, some pencils and some children's bricks - she was able to get the claimant to explain what he said had occurred. The claimant was also seen at that time by his friend Mr Marsden, a former school teacher, who had helped the claimant with paperwork when the claimant had been working on his own.

On Tuesday 30 June 1998 Donna Goucher, the defendant's quality and safety manager, having returned from her holiday, endorsed on the Accident Investigation Form her recommendation to prevent a recurrence, and completed Form 2508, a report of an injury or dangerous occurrence for the Health and Safety Executive. The account of what happened given in that form was substantially the same as that recorded in the Accident Book. Miss Goucher wrote:

On Wednesday 1 July 1998 the claimant had a more extensive stroke affecting his right arm and right leg. He was re-admitted to hospital where he remained for 10 days, but serious problems remained including in particular problems with speech.

On 9 September 1998 Mr Marsden on behalf of the claimant filled out a trade union accident form. His evidence was that he got the information from the claimant, and on that form he wrote:

At about the same time - some three months or so after the incident in June - Mrs Russell went to see Mr Riley, who had been the driver of the lorry on the night of the incident to ask him what had happened. It was the case for the defence that she went because she did not know; she said she was seeking further information.

On 5 October 1998 Mr Marsden completed a questionnaire provided by the solicitors to whom the trade union had passed the claimant's file. In answer to question 9, Mr Marsden - he says on the claimant's instructions - wrote:

The solicitors, Jack Thornley & Partners, then on 15 October 1998 wrote a letter of claim to the defendants in which they said that the claimant -

About six months later, early in 1999, the file was passed to the claimant's present solicitors, Irwin Mitchell. On 1 March 1999 they wrote to Dr Bamford, a consultant neurologist, giving him instructions to examine the plaintiff and saying "precisely what happened is not clear". That letter continued:

When the claimant saw Dr Bamford in September 1999 he told the doctor that his last recollection was opening the trailer doors. After that he was knocked to the ground, and it was part of the defendant's case that the claimant may not, in fact, ever have known what occurred. But Mr Little also relies on what was said to Dr Bamford as some indication by the claimant of the force of the blow that he sustained. The relevant part of Dr Bamford's report reads:

The claimant gave a similar account to Dr Schady, the neurologist instructed by the defendants, when he saw Dr Schady on 15 July 2000. Dr Schady recorded that account as follows:

These proceedings were commenced on 16 August 2001. Mrs Russell having made her first witness statement on 23 July 1999, it was not until she made her further statement on 13 February 2002 that she said anything about the demonstration with the toy lorry on Sunday 28 June 1998.

On 22 March 2002 the claimant and his advisers went to the defendant's premises; photographs were taken, together with a video film which we have seen. A trailer was reversed into position and the claimant opened the rear doors in such a way as to demonstrate how he now says his accident occurred. But, in my judgment, the video demonstration did not extend to head movements. Two of the still photographs taken on that occasion show the claimant holding the end of a load bar which is protruding from the rear of the trailer against the left hand side of his head. In evidence the claimant sought to explain those photographs by saying that it was something he was asked to do by someone on behalf of the defence.

Mr Wooldridge, a claims investigator employed by the defendants' solicitors, was present when the photographs were taken. He made it clear in evidence that no one on behalf of the defence asked the claimant to pose as he did, nor to lie on the ground with load bars on either side which he also did.

The two neurologists, Dr Bamford for the claimant and Dr Schady for the defendants, agreed that the claimant did sustain a stroke at work on 18 June 1998, probably triggered by the previously diseased left carotid artery, and that the stroke, together with further strokes affecting the left side of the brain which occurred over the ensuing two weeks, were responsible for the claimant's neurological deficit.

The injury to the left temple could not have been caused as demonstrated in the still photographs. If caused by a load bar it must have been a glancing blow and - as Dr Bamford pointed out in evidence, and Dr Schady agreed - the initial stroke only affected speech. So it could not, on the face of it, have been causative of a fall.

In order to damage the left carotid artery it would be necessary for the head to move sharply to the right, but in evidence the claimant repeatedly demonstrated and spoke of movements to the left. Equally, as I have said, there was no sharp movement to the right demonstrated by him on 22 March 2002. Dr Bamford, at least, was satisfied that what he saw and heard from the claimant could have caused the damage to the artery which both doctors agreed was probably the cause of the first stroke.

Against that background the judge identified the issues as, first, whether the head injury observed by the general practitioner and the hospital on 22 June 1998 had been caused by a blow to the head. In their amended defence the defendants contended in paragraph 6 that -

The judge found, first of all, that the head injury was consistent with a glancing blow from an emerging load bar. That was the view of Dr Bamford although it was a view with which Dr Schady was not comfortable.

Secondly, the judge found that Mr McKenna was a credible and honest witness whose evidence could be accepted.

The judge found similarly that Mrs Russell was plainly an honest witness, whose evidence he was prepared to accept in full. The judge relied in part on the evidence of Mrs Russell, and also what he described as the evidence of Mr Riley, to find that not long after the accident the claimant was uncommunicative and unable to deal with paperwork. Although a statement was taken from Mr Riley and part of that statement was put to Mrs Russell, Mr Riley was not called to give evidence, nor was his statement put in evidence. So there was no evidence of Mr Riley.

The judge then found that the hospital note as to how the accident occurred must have been information provided by Mrs Russell and was supportive of her testimony. The judge said:

The judge went on to find that Mr Marsden was a reliable witness whose evidence he accepted.

The judge found that Mr Cook had misunderstood what the claimant was trying to explain when his brain injury had prevented him from being able properly to communicate what had happened to him or to read and comprehend what was recorded. That, of course, was somewhat difficult to reconcile with what Mr Marsden had written in answer to question 12 on the solicitor's questionnaire.

The judge next found that the Irwin Mitchell letter of 23 July 1999 was not sinister. It could have been due to a misunderstanding. The judge does not seem to have made any finding about the earlier letter from Jack Thornley & Partners, but he went on to find that nothing turned on Mrs Russell's failure to mention the toy demonstration until 13 February 2002 or on her visit to Mr Riley. She was just seeking as much information as she could get or perhaps seeking support for her husband's version, a possibility which had not been referred to by Mrs Russell.

The judge found that the claimant himself is likely to have a memory of what happened, so the judge accepted his evidence supported by what he said to Mr McKenna, his wife and Mr Marsden before he had the second stroke.

The judge accepted that, as Dr Schady said, a movement to the left as demonstrated by the claimant in court would be less likely to have flexed the left carotid artery. He found that on the video the claimant demonstrated a movement to the right which would have affected the artery. The judge said this:

As to the mechanics of the damage to the left carotid artery which, on the agreed medical evidence, probably precipitated the stroke, the judge said:

For my part, having seen the video, I cannot accept that there was any inconsistency. The claimant consistently gave evidence of moving his head to the left when giving evidence in court. There was no other evidence. The judge went on to find that the head injury and the injury to the artery which was causative of the stroke were sustained as alleged, saying:

When judgment was delivered the recorder, at the invitation of Mr Little, in effect, underlined his conclusion that the claimant had no reliable recollection of the movement of his read and his finding that in fact his head movement involved a flexion of the head and neck to the right.

In this court Mr Little advanced three grounds of appeal. First, he submitted that the judge failed to have sufficient regard to the inconsistencies and contradictions in the account of the accident given by the claimant in relation to his head injury. Mr Little's next ground of appeal focussed on the mechanism of the injury which caused the stroke. His final ground of appeal related to the medical issues.

In support of his first ground of appeal Mr Little invited our attention to the written records to which I have referred: the Accident Book, the Accident Information Form and the Accident Investigation Form. He accepted that the position of the defendants was weakened by their inability to call Mr Cook to give oral evidence. But he submitted that the detail in the early written accounts must have come from the claimant. Such detail was not accounted for by dysphasia; the doctors were agreed as to that. The lack of consistency persisted, as can be seen from the solicitor's letters written by Jack Thornley & Partners and then, on 23 March 1999, by Irwin Mitchell, long after Mrs Russell said she had a clear understanding of the accident as a result of the demonstration on 28 June 1998. How the solicitors' letters came to be written as they were was not satisfactorily explained. And if Mrs Russell really knew how the accident happened, why did she go to see Mr Riley as she did? In his statement Mr Riley said:

Mr Little submitted that the judge could have either accepted the pleaded case and Mrs Russell's account of 28 June 1998 and explained the inconsistencies or he could have rejected the account of the demonstration on 28 June 1998 and, in fact, he did neither. The inconsistencies, Mr Little submitted, were such that no reliance should have been placed on any account given by the claimant either directly to the court, or apparently to someone else. All that was really proved was that something happened during the night shift of 17/18 June 1998 and the claim should fail on that ground.

As to that, Mr Kempster rightly reminded us that the judge heard the evidence and made clear findings as to which witnesses he regarded as honest and reliable. He submitted that the points made by Mr Little were simply points made in the court below and that they failed to give sufficient weight to the claimant's dysphasia. The doctors agreed that the -

The defendants have always admitted that during the night shift of 17 to 18 June 1998 the claimant became uncommunicative. If it was accepted that during that shift he sustained a head injury as he alleges there must have been a link between the stroke and the head injury. Although the claimant was twice as vulnerable as others of his age group, his vulnerability was only 3 per cent per annum and it would be extraordinary if coincidentally he suffered a stroke on a shift on which he suffered a relatively minor head injury of a kind that could precipitate a stroke.

In my judgment, Mr Little's first ground of appeal cannot succeed because of the assessment which the judge made of four key witnesses: the claimant, his wife, Mr McKenna and Mr Marsden.

Because of the inconsistencies in the contemporaneous records I have considered anxiously whether, even allowing for the dysphasia from which the claimant suffered from about 2 a.m. on 18 June 1998, the judge was entitled to conclude as he did. But in the end I have come to the conclusion that we in this court, who have not seen and heard the witnesses, cannot interfere. The defendants were seriously handicapped by the absence of Mr Cook, and his failure to explore the discrepancies between the accounts he recorded is surprising. But, as Mr Little submitted, it is difficult to accept that the detailed information came from anyone other than the claimant, even if he was being to some extent misunderstood. The cross-examination of Mr Marsden seemed to me to be extremely effective, despite judicial interruptions. At the end of the day, as Mr Kempster pointed out, Mr Little had no point to make in relation to the evidence of Mr McKenna. And if the claimant gave him, on the Friday night, a version of the accident consistent with his present case then the judge was plainly entitled to decide as he did.

I turn then to Mr Little's second ground of appeal which focuses on the mechanism of injury. It can be put shortly. The only evidence to link the stroke to the head injury was the medical evidence. That involved a sharp movement of the head to the right extending the carotid artery. The judge rejected Dr Bamford's more relaxed approach, which suggested that virtually any head movement would suffice. The claimant in evidence demonstrated again and again and spoke of a head movement to the left. The video, Mr Little submitted, provided no evidence of a head movement to the right. As I have indicated, I agree. So, Mr Little submits, there was no evidence to link the head injury and the stroke and the judge was not entitled to speculate to fill the gap.

Mr Kempster submitted that even if there was little to be gained from the video, the judge was entitled to find, as he did, that the claimant was unreliable about the way his head moved when the bars moved towards him and that he might well have moved his head quickly to the right to avoid an oncoming bar; the judge was entitled to find that he did so, knowing, as he did, that such a movement could precipitate a stroke of the kind which the claimant undoubtedly sustained. As Mr Kempster submitted, if the stroke had been fatal a court would not be deterred from drawing the necessary inference, and in evidential terms the position is the same once the judge was able to reject the claimant's own account as to the way in which he moved his head.

I therefore reject Mr Little's submission that the judge could only find that the claimant moved his head in the way he described doing so in the witness box.

Mr Little's final ground of appeal concerned the failure of the judge to refer to the apparent contrast between the claimant's accounts of what happened when he was struck and the severity of the blow he sustained. The load bars were heavy and, as Dr Schady said, they were, at least at their ends, sharp and ragged. But the claimant's head was not lacerated and the closed head injury was not severe. Dr Bamford envisaged a glancing blow; Dr Schady was not comfortable with that. But if it happened such a blow would not have knocked the claimant to the ground in the way he described to both doctors. Mr Little submitted that the judge had failed to address the dilemma. Either the claimant sustained a glancing blow in which case why was he asserting that he was knocked down with such force that he was unable for a short time to say what happened next? Or, if he was knocked down as he stated why was the head injury only minor? The judge simply declined to comment on whether the claimant was knocked down.

I find that unsatisfactory, but I cannot regard that as a decisive point. Even though the general practitioner in his referral letter described the blow to the head as "substantial", that was no doubt what he was told and on examination the head injury on its own was not of any real significance.

For those reasons I would dismiss this appeal, with costs to be subject to detailed assessment if not agreed.

LORD JUSTICE SCOTT BAKER: I agree.