Edmonds v Lloyds TSB Group Plc

J U D G M E N T

1. LORD JUSTICE GAGE: This is an appeal from His Honour Judge Simpson, sitting at the Mayors and City of London County Court. The appellant's/claimant's claim was one for damages for personal injuries arising out of an accident sustained at work. By his judgment and order, given on 15 March 2004, if my arithmetic is correct, the judge awarded her a total of £23,384 in damages. Of that sum the claimant was entitled to 75 per cent, liability having been compromised by agreement before trial. The compromise was on the basis that she was 25 per cent contributory negligent. Therefore the sum to be apportioned to her of the damages was 75 per cent.

2. The central issue at the trial was an allegation by the defendant that the claimant had failed to mitigate her loss by refusing to undergo treatment which, it was alleged, would have enabled her to recover from injuries to a large extent and sufficiently to return to full time employment. On this issue the judge found in favour of the defendant. He held that the claimant ought to have undergone treatment - consisting of three epidural injections into the lower back - which was recommended by a consultant orthopaedic surgeon, Mr A H Osborne. The surgeon recommended that the injections were carried out under a general anaesthetic and over a period of approximately six weeks. The claimant appeals to this court on that issue and also on issues concerning the amount of damages awarded by the judge.

3. The background to this matter and the evidence are as follows. The only oral evidence at trial came from the claimant and her husband. The rest of the evidence, including the medical evidence, was in the form of reports, letters and other documents. The accident occurred at work. The best description of the accident is that given at the start of the judge's judgment. It took place on 6 December 2000. She was employed by the defendant bank as a post room clerk at their premises in Tonbridge, Kent. On the day of the accident she was walking from a lobby to the first-floor landing of her place of work when she tripped over some boxes which were on the landing and fell. She suffered an injury to the bottom of her back which resulted in pain. It was a soft tissue injury to the lower back. In due course she was referred to a consultant orthopaedic surgeon by her general practitioner. In a letter dated 26 March 2001 he described the injury in this way:

"Examination shows that the pain is mostly localised to the sacral area of the spine. There is tenderness in this area. Movements of the lumbosacral spine are restricted and painful and there are no neurological deficits in either lower extremity. SLR is 80° on both sides. X-rays of lumbosacral spine do not show any bony injuries. X-rays of sacrum and coccyx also do not show any evidence of bony injury. I have, therefore, advised her to attend for a course of physiotherapy. This will be ultrasonic therapy and some back exercises. I have told her that the pain could take some time to settle. She could obtain a ring cushion to sit on for her own comfort."

He went on to say that he had not arranged to review her.

4. Mr Osborne, who was instructed on behalf of the claimant by her solicitors to prepare a medico-legal report, said of her injuries in a report dated 1 October 2001, in a summary:

"[She] ..... sustained a soft tissue injury to the sacro-coccygeal junction of her back in a fall on 6 December 2000 .....

[She] has never returned to work as a clerical officer. She continues to have pain over the sacro-coccygeal area. She finds it difficult to sit for more than twenty to thirty minutes. She uses a ring when sitting for prolonged periods.

Clinical examination today shows that she has a flat back with loss of the natural curvature of the spine. There is a satisfactory range of back movement and she remains acutely tender over the sacro-coccygeal area. There is no abnormal neurology in her legs."

Sadly she has not recovered from those injuries and that condition, so far as we have been told, subsists today.

5. The issue on the mitigation of damages arises in this way. Mr Osborne, who was instructed by the claimant's solicitors to examine and report for the purposes of the trial, said in the report to which I have just referred of 1 October 2001 that there was treatment that she could undergo. It is put in his report in this way at page G. Having described the pain, he said:

"Symptoms can usually be improved by hydrocortisone and local anaesthetic injection to the sacro-coccygeal area. This may have to be repeated a total of three times. It is an unpleasant injection to have without a general anaesthetic. It is kinder to give a short general and inject the hydrocortisone more accurately."

He then deals with the cost of the treatment. At paragraph 2 on that page he states:

"I think with this treatment her remaining symptoms would slowly settle over the next six months and she would be able to return to her previous job and to her previous social activities."

Up to that time she had been receiving physio treatment which by then had reached the stage where there was to be no further improvement of her condition. In letters and reports following the one to which I have referred Mr Osborne returns to the topic of the injections. In a letter dated 11 April 2002 to solicitors for the claimant Mr Osborne said:

"Thank you for your letter of 28 March with enclosure. Nobody can guarantee success with any surgical procedure. No patient can be forced to have treatment and it is reasonable under those circumstances to decline the suggested sacro-coccygeal injections. We shall arrange to see her for a further medical report in June/July 2002."

6. In the meantime the claimant says that she had seen her general practitioner. The general practitioner's notes appear to suggest that she saw him on 11 October 2001.

7. When she went back to see Mr Osborne in June 2002 it is clear from his report that the question of the possible injections was raised by her. At paragraph 6 of his report of 10 June (letter P behind tab 16) Mr Osborne states:

"She is wary of any hydrocortisone to the sacro-coccygeal area. She appreciates there is no guaranteed success with this treatment."

On the following page under "Discussion and Prognosis" he states:

"Mrs Edmonds has made the decision not to proceed further with any hydrocortisone injection as the results cannot be guaranteed to be successful. One can only respect her decision.

I think she is now left with permanent residual symptoms. I would not expect any significant improvement at this stage. However there should be no deterioration in the long-term either."

8. In due course the defendant's solicitors sought the opinion of Mr Osborne on the question of whether or not and how successful the treatment might have been had the claimant undergone it. In a letter dated 16 February 2004 from Mr Osborne to the defendant's solicitors he stated:

"1 I would have thought there would be a 50% chance of significant improvement with the proposed injections to the sacro-coccygeal area.

2 I would put the rate of no improvement at 20% and the rate of temporary improvement for up to three months as 30%.

3 The success rate tends to deteriorate the longer symptoms are present. I base the percentage success rate on a series of three injections, probably given at about six weekly intervals."

9. In evidence before the trial judge the claimant said that she wanted to discuss the matter with her doctor. As I have already stated, she did so on 11 October 2001 as she stated in evidence. There was also evidence before the judge that before the recommendation for the treatment by Mr Osborne was made she had seen her general practitioner on approximately ten occasions. Not surprisingly, she gave evidence about this matter in some little detail. The transcript of her evidence is before this court and we have been taken to a number of passages by counsel. It is unnecessary to deal with all of them. Perhaps a few selections will suffice. During the course of cross-examination by Miss Katherine Awadalla, who appeared for the defendant at trial and appears today for the defendant before us, in answer to the question what was her response to the suggestion that she should have this treatment, the claimant stated:

" ..... I needed to go away and think about it and discuss it with by husband and with my GP, and I also discussed it with friends. But when I discussed it with my GP he more or less said that he didn't think that I would benefit from it, or if I did it would be very, very short term. I must admit I was very nervous about these injections and I heard a few stories from friends that they hadn't worked on other people. My own GP didn't think that it was a particularly good idea. So, on that - and my nervousness of them - I decided not to go ahead."

At page 14 of the transcript, again in answer to counsel for the defendant, she was being asked questions about the guarantee or not that she had sought from Mr Osborne. The question at the bottom of page 13 was:

"Q He said he could not guarantee .....

A Yes, he did he said that. When I'd gone up to his offices and I asked him, I said that I had had a word with by GP and I asked him could he give me any guarantees, and he said 'No, no.'"

It is apparent from the general practitioner's records and from Mr Osborne's reports that she is referring to a discussion she had with Mr Osborne in June 2002. She was asked further down the page at letter C the following question:

"It was the fact that this injection might not work that kept you from having it."

The answer is as follows:

"To be honest it's probably a number of reasons: the fact of being injected into my spine doesn't fair very well with me; the fact that my GP didn't give it his full consent, if you like, or what; and friends that I had spoken to had more of a negative response to it than a positive. So, it was a combination of things that really made me decide against it in the end."

A little later at page 15 she said this about something she was said not to have put in her witness statement:

"A Well, if I haven't it was an oversight on my part, but to turn the injections down wasn't something that I took lightly. I would not just take it on friends' advi[c]e. I had to speak to my GP who knows what I've been under for some time and who knew my condition because he had already referred me to a doctor in, a specialist in Dartford Hospital, I think it was. And after seeing that specialist he, himself, never - I mean it didn't come up - but he never recommended to have that injections or anything. All he recommended was for me to have physio."

10. When she came to be re-examined she raised something which had not been raised before by her, namely the question of the effect of drugs that it sometimes caused her to have. At page 7 (day 2) she said in answer to a question:

"A ..... the thought of injections, and I was just worried. At that stage I hadn't seen my doctor so I hadn't really discussed it, except possibly with my husband about whether it would be good or not. I was just nervous about it."

A little later she said:

"A ..... there's a lot of drugs I can't take, that I have a very bad reaction to, and I think it seems so pertinent maybe having an injection in your spine and not knowing what the reaction would be, you know. I was just concerned about it until I could speak to my GP."

Finally on the following page, page 8 she was asked about the attitude of her doctor. The question was:

"Q. You told us that he was not very enthusiastic about them?

A. No, no, he wasn't. I've been seeing Dr Patel for some time and he knew my condition and I wanted his opinion of the injections. And, in his opinion, he didn't think that they would have a good long term effect."

11. When the judge came to give his judgment it is quite clear - and stress is laid upon this on behalf of the claimant by Mr Nicholas Hillier who appeared below, as he does before us - that the judge made no finding adverse to the claimant that her evidence was not credible. In his judgment the judge refers to various parts of the claimant's evidence about which he comments. Again I do not propose in this judgment to refer to all of them. Suffice it to refer at this stage to paragraph 11 where he deals with the question of the guarantee of success. Paragraph 11 reads:

"She was also concerned that there was no guarantee of success. But I have already said that there can be no guarantee of success for any surgical procedure."

At paragraphs 16, 17 and 18 he sets out his reasons and his conclusion on this central issue. I quote paragraphs 16, 17 snd 18:

"16 The only medical evidence in the case is that of Mr Osborne who thinks that Mrs Edmonds could have been back at work by June 2002. I think that a 50 per cent chance of significant improvement is a high percentage. Certainly a 20 per cent chance of no improvement is not such as to make it reasonable as to reject the treatment. Mrs Edmonds wanted to return to work. One would have thought that she would do everything in her power to try and get better as quickly as possible.

17 Mr Hillier has persuasively tried to submit that the defendants have not proved that Mrs Edmonds acted unreasonably. But persuasive though those submissions appear to be, I do not accept them. Mr Osborne gave very clear advice. Mrs Edmonds preferred the opinion of her GP and does not appear to have asked to see her treating surgeon again. She is not required to nurse the interests of the tort feasor, she is only required to act reasonably. I do not think that she has done this.

18 Accordingly, I hold that she has failed to mitigate her loss."

12. Before I turn to the specific grounds of appeal on this issue, it is important to note what the law is: it is not in dispute. The basic principle in respect of mitigation of damages is that a claimant has a duty to take reasonable steps to mitigate his or her damages. It applies to claimants suffering personal injuries as it does in all cases where negligence is proved. The burden of proving that a claimant has failed to mitigate his or her damages is on the defendant. Third, the question of whether or not a claimant has mitigated his or her damage is a question of fact for the judge to decide. As counsel have indicated, there can be no criticism of the judge as to how he applied the law to the facts as he found them. The criticism of him that is made in the grounds of appeal is that the judge did not properly evaluate the evidence of the claimant's reasons for her refusal.

13. Mr Hillier has taken us through the evidence itself and the various passages of the judgment which deal with the one witness who gave oral evidence, namely the claimant. He relies on a number of factors on which he says the judge went wrong. In particular, he submits that the judge paid little or no attention to the fact that she sought advice from her general practitioner. He submits that it was not so much the advice that the general practitioner gave her but the effect it had on the decision she made. It was that factor the judge failed properly to address. He refers to a number of other matters including the question of the guarantee and the fact that no guarantee could be given. Essentially what he submitted is that the judge looked at each of the factors individually and expressed criticism of them but he did not look at all of them cumulatively. If he had done so he could not possibly have reached the conclusion which he did.

14. So far as the defendant is concerned, in response to that ground of appeal and those submissions, the principle response is that this was an issue of fact for the judge to decide. Miss Awadalla submits, on behalf of the defendant, that the judge looked at all the evidence before him; he assessed it; he made his decision and was entitled to make it on the as basis of his findings. She relies on various parts of the evidence in support of her case. She submits that important factors were that before ever the claimant saw Mr Osborne the physiotherapy had failed. The recommendation was made against that background and gave prospects of the hope of future employment for her. The claimant had undergone acupuncture which, she submits, is not wholly different from injections. She relies on the fact that there was no written evidence from the general practitioner before the trial judge and there was no evidence that the claimant might suffer any bad or adverse reaction from the hydrocortisone injections. She relies on passages in the judge's judgment where he criticises the claimant for not seeking a second opinion from her treating doctor or surgeon, Mr Kander. She submits that the judge was entitled to dismiss, as he did, the suggestion by Mr Osborne that the claimant's action in refusing the treatment was a reasonable one.

15. Both counsel, in their skeleton arguments and, to some extent, in argument before us today, have referred to decisions in other cases dealing with alleged failures to mitigate damages. Some of them are personal injury cases. For my part, I gain little assistance from these authorities. In personal injury cases the issue of whether or not a claimant has acted reasonably will, in my judgment, almost invariably be very fact specific. I glean little by way of assistance from those authorities other than that they demonstrate some factors which have caused the court to rule one or other side of the line.

16. I, for my part, accept the submissions of Mr Hillier that the judge in his judgment failed properly to evaluate the factors which it was necessary for him to consider when deciding whether or not the claimant acted reasonably in refusing to undergo the suggested treatment. In his judgment the judge gave consideration to a number of factors. To some of them he gave little weight, and, in my judgment, to those which I shall mention in a moment the claimant was entitled herself to take them into account in making her decision as to whether or not to have treatment, and she was entitled to expect the judge to consider and give weight to what she had said were the reasons for her refusal. For instance, as she said in her evidence, there was no guarantee of success. The judge appears to have thought that the success rate was a high percentage. He says as much in paragraph 16 of his judgment to which I have referred. It seems to me on a proper analysis of the letter of Mr Osborne that he was not saying that the prospects of a complete recovery was a high percentage. He was saying that the prospects of a significant improvement were 50 per cent. Looking at his other percentages, it seems to me possible to say that what he was saying about the downside was that there was equally a 50 per cent chance that there would only be a temporary improvement for a period of three months.

17. In my judgment, the judge overvalued the prospects of success. It is also worthy of note that the claimant did not actually see those percentages until just before the trial. In paragraph 9 of his judgment the judge said:

"The percentage of no improvement having been put at 20 per cent means that there is that small chance that the whole process would fail. But it is clearly Mr Osborne's position that she would have been able to return to work by June 2002."

I am bound to say that for my part I regard that as an over- optimistic assessment of the letter sent by Mr Osborne to the defendant's solicitors to which I have just referred.

18. The next factor which was, in my judgment, significant and to which the judge appears to have paid too little weight, is the fact that the claimant, as she plainly did, went to see her general practitioner for the purposes of getting advice from him. The judge describes that in paragraphs 13 and 14 of his judgment. He states:

"Then it is said that within days she was talking to her line manager and expressing her concerns and worries and she went to her GP."

I interpolate, she plainly did talk to her line manager. The documents show she did that, and that her line manager suggested she should see her general practitioner and discuss the matter with him. The judge went on:

"As described by Mrs Edmonds in the witness box, she said that the GP did not give full consent. She also said that he did not think it would be of benefit and she was nervous about it.

There is no evidence from her general practitioner. Even if there was I would plainly have to prefer the opinion of Mr Osborne, who is a consultant orthopaedic surgeon, over the view of the general practitioner."

19. To my mind, not only does that undervalue the evidence about what she was told by the general practitioner, to some extent it misses the point. The fact was, on her unchallenged evidence, she was given that advice by her general practitioner which was that he was not optimistic about the prospects of success for this type of treatment. That was something which affected her mind and something which the judge dismissed all too quickly.

20. The next factor to which, in my view, the judge failed to give any, or any proper, weight was the expression of opinion by Mr Osborne in the letters he wrote when he stated he, first of all, that he respected the claimant's refusal to have the treatment; and, secondly, in the letter of April 2002 that it was reasonable for her to decline the suggested injections. The judge said as to that that it was simply a matter of opinion for Mr Osborne to which he did not pay any great attention. He accurately and correctly pointed out that the decision on whether or not the claimant acted reasonably or unreasonably was one for him. Once again, in my judgment, it was unnecessary and wrong of him simply to dismiss - as he appears to have done - the opinion of Mr Osborne. Mr Osborne appears to accept that in the context of the suggested treatment that it was reasonable for the claimant to refuse to undergo it. It seems to me that is a factor to which the judge ought to have paid some weight, bearing in mind it was for him to make the decision.

21. The next matters to which I shall refer are those to which the judge gave weight when they had not the significance that is borne out by the evidence. First - a matter to which I have referred - the question of whether or not Mr Osborne's letter gave a high prospect of success. As to that, the judge said at paragraphs 16 and 17 to which I have referred:

"I think that a 50 per cent chance of significant improvement is a high per cent."

That, coupled with paragraph 9 of his judgment to which I have also referred, where he states that -

"no improvement having been put at 20 per cent means that there is only a small chance ..... [of failure]"

does not properly evaluate Mr Osborne's opinion.

22. The next thing to which the judge referred was the fact that he was surprised that the claimant had not been back to ask her treating surgeon about whether or not she should have this treatment. It is perfectly true that the claimant did not go back to her treating surgeon to ask questions about it. However he had never suggested that she should have any injections. She also had had the benefit, as she said in evidence, of being advised by her general practitioner. In my judgment, the judge paid too much attention to that matter.

23. Taken cumulatively, in my judgment, those errors to which I have referred demonstrate that the way in which the judge arrived at his conclusion that the claimant had failed to take reasonable steps to mitigate her damages was flawed. I am very conscious that in respect of this ground of appeal this court is being asked to reverse a finding of fact by the judge. The judge saw and heard the witnesses. This court has not. This court will no doubt always be slow to interfere with a judge's finding of fact. On the other hand, in this case there was only one witness who gave evidence orally on this issue; that was the claimant. The judge made no adverse comments about her credibility although he did make adverse comments about the reasons she put forward for refusing treatment. The rest of the evidence on this issue came from reports and letters which we have seen and are in as good a position to assess as the judge.

24. For the reasons I have endeavoured to explain, my conclusion is that the judge failed properly to evaluate the unchallenged evidence given by the claimant of her reasons for refusing to undergo treatment. In particular, in my opinion, if he had given proper weight to the following factors he should and would have reached a different conclusion. Those factors are, first, her anxieties about the injection expressed from the earliest time that the suggestion was made which, in my judgment, were entirely understandable, particularly bearing in mind the fact that success could not be guaranteed. Secondly, the advice she received from her general practitioner to which she was, in my judgment, entitled to give some weight. He had been her treating general practitioner for some time. So much is clear from the fact that she had visited him ten times before the occasion when she sought his advice as to this matter. In my judgment, any patient is entitled to consider carefully what his or her general practitioner has to say about a matter as important to them as the one in this case was to the claimant. Thirdly, the fact that Mr Osborne could not give any guarantee of success was an important factor which the claimant took into account and to which the judge should have given weight. Finally, to a lesser extent, the opinion expressed by Mr Osborne that the refusal by the claimant was a reasonable one. In my judgment, that was a matter which should have been given weight.

25. Bearing in mind the burden of proof on the defendant, all these factors, taken cumulatively, lead me to conclude that the judge's decision on this issue was wrong, and I would allow the appeal on this ground.

26. The second ground relates to the question of damages. The judge awarded £10,000 general damages. He awarded £12,034.68 for loss of earnings up to June 2002, £150 agreed expenses and £1,200 for care, presumably but not specifically stated, for a period of 24 weeks. A number of criticisms are made on the question of damages. The first submission made on behalf of the claimant is that there is an issue on causation, that being that the judge ought not to have found that the failure to mitigate loss led to any loss by the claimant. It was not proved, as it is submitted, that on a balance of probabilities that if she had undergone the treatment it would have been successful. That does not fall, in my judgment, to be considered. If my Lords agree with me on the first ground, then it us unnecessary for us to go into that matter. I am bound to say that as the case is put by Mr Hillier, on her behalf, I have reservations about the principle upon which it should be assessed. If it is on the balance of probabilities, it seems to me that it may be that that is the wrong principle and that it ought to be on the basis of loss of chance, but that does not, in my judgment, arise for consideration at this stage.

27. There is also a challenge to the sum awarded for loss of earnings. There is in this court a problem in relation to that matter. The judge was asked by the defendant to make a finding that the claimant should have obtained alternative employment. It was submitted that she could have obtained alternative employment. As to that matter, the judge said at paragraph 19:

"It is that Mrs Edmondsunreasonablyrefused to seek alternative jobs, or at least did not try hard enough. I though on the evidence that the claimant was on stronger ground as to this point, and I indicated as much to Mr Hillier. In the result it is unnecessary for me to form a view on it because of the view I have formed about the treatment point.

Accordingly, I have not heard submissions from the defendants on that matter."

It is very difficult, if not impossible, for this court to deal with that matter when the judge has not made any findings at all that would assist. As far as that is concerned, in my judgment, that will have to be remitted to a district judge at the County Court for his assessment.

28. The next matter is a claim for a sum for loss of congenial employment. It was in the schedule of damages, put in at a late stage but there nonetheless. That is not mentioned at all by the judge in his judgment. There is no finding whatever about that. In my judgment, that will have to be remitted to the district judge. The fact of the matter is that that may depend upon whether or not he concludes that the claimant is likely to obtain alternative employment.

29. The final issue on special damages and future loss concerns care. Once again, the judge made no specific findings about that other than that the cost of care should be valued at £5 an hour. He dismissed this claim in a somewhat peremptory manner by stating that in his opinion it was worth £1,200 based on a schedule of damages dated 24 March 2003. I am bound to say, for my part, I can see no real logic and no way how he achieved that sum. It is tempting for this court to feel that it can deal with that aspect of damages at this stage on the basis of the evidence before us, but, for my part, if damages are to be assessed in part by a district judge, I would also refer that matter to the district judge.

30. That just leaves general damages. The judge assessed those at £10,000 but that was on the basis there had been a failure to mitigate. That must be adjusted, in my judgment, in the light of my conclusions in relation to the first ground of appeal. For my part, I would remit that matter to the district judge as well so that he can deal with all the damages claimed in this case. For the reasons that I have given I would allow the appeal.

31. SIR MARTIN NOURSE: I agree. On the mitigation question, I think that Mr Hillier is right in saying that the judge failed properly to consider the whole of the evidence in the context of the issue before him, which was whether the claimant acted reasonably in not acceding to Mr Osborne's suggestion that she should have three hydrocortisone injections in the sacral-coccygeal area, each administered under a short general anaesthetic.

32. The evidence has been fully stated by my Lord. When it is properly considered there emerges the picture of a woman, aged 54 in October 2001, who had been to see her general practitioner, Dr Patel, about ten times since the accident and had been examined by a consultant orthopaedic surgeon in March 2001. Neither Dr Patel nor the consultant had said anything about injections. It is not surprising that when Mr Osborne suggested them the claimant wanted to have a talk about it to Dr Patel.

33. The claimant dealt with the immediate consequences of Mr Osborne's suggestion at several places in her evidence, and her evidence was at every point consistent. Her first, and therefore perhaps the most compelling, answer when questioned about this matter was this:

"Well, I needed to go away and think about it and discuss it with my husband and with my GP, and I also discussed it with friends. But when I discussed it with my GP he more or less said that he didn't think that I would benefit from it, or if I did it would be very, very short term. I must admit I was very nervous about these injections and I heard a few stories from friends that they hadn't worked on other people. My own GP didn't think that it was a particularly good idea. So, on that - and my nervousness of them - I decided not to go ahead."

34. The question was whether - after Mr Osborne had later stated that the results of the injections could not be guaranteed to be successful - that was a reasonable decision for the claimant to have made. In my judgment, for the reasons fully given by Lord Justice Gage, it is clear that it was and that the judge was wrong to find that it was not. This view of the matter is confirmed by Mr Osborne's subsequent statements that the claimant's decision not to proceed with the injections was reasonable and could only be respected and, further, that there was no more than a 50 per cent chance of significant improvement if the injections were administered.

35. I too would allow the appeal and make the order for remittal proposed by Lord Justice Gage.

36. LORD JUSTICE POTTER: I agree with both judgments. The appeal will therefore be allowed and, subject to any comment or contrary suggestion by counsel as to the wording, the case will be remitted to the district judge for reassessment of general and special damages, including future loss of earnings and future care, including also the claim for loss of congenial employment.

Order: Appeal allowed