Hardisty v Aubrey

LORD JUSTICE PILL: Lady Justice Smith will give the first judgment.

LADY JUSTICE SMITH: This is an appeal, brought with the permission of Moore-Bick LJ, from the decision and order of Mr Recorder Phillips QC sitting in the Cardiff County Court on 9th December 2005.

The claimant, Mrs Tina Louise Hardisty, had claimed damages for personal injury suffered in a road traffic accident on 3rd October 2001. Liability had been admitted by the defendant. It was agreed that Mrs Hardisty had suffered a whiplash injury. However, there was a dispute as to how long the effects of the accident had lasted. Mrs Hardisty contended that she was still suffering its effects at the date of the trial and that her symptoms of pain and stiffness of the neck with associated frontal headaches were likely to persist indefinitely. By the end of the trial, the defendant was contending that the effects of the accident had run their course by November 2002 and that any symptoms suffered since that time were due to other factors.

The Recorder accepted the defendant's submission and awarded Mrs Hardisty £3,750 as general damages. Together with special damages and interest, the total award came to £4,686.35. Mrs Hardisty now appeals against that award on the basis that the Recorder was wrong to hold that the effect of the accident had lasted only until November 2002.

Following the accident in October 2001, a claim was intimated and liability was admitted by letter in December 2001. However, by September 2004, the claim had not been settled and proceedings began. The particulars of claim relied on and were accompanied by a medical report dated July 2002 from Mr Marcellino Maheson, an orthopaedic surgeon. He expressed the view that the claimant had suffered a whiplash injury which, despite physiotherapy, was still causing her to suffer pain and loss of amenity. He said that the symptoms could be expected to resolve within 18 months to 2 years of the accident. The defence repeated the admission of liability and put the extent of injury, loss and damage in issue. No specific contentions were advanced in respect of damage.

Thereafter the claimant obtained a further report from Mr Maheson dated 1st March 2005. In that, he described the history of the claimant's symptoms and treatment since his last report. He said that, despite further treatment and some periods of improvement, the claimant was still suffering symptoms referable to the accident. His earlier prognosis for recovery had not been borne out by events. He was of the view that the reason why the symptoms had lasted longer than was usual after an accident such as this was because the claimant had pre-existing degenerative changes of the cervical spine. These had been discovered on an MRI scan taken in September 2003. These changes were mild in nature and would probably not have given rise to any symptoms in the absence of an accident. However, following the accident, symptoms had been triggered and, once triggered, they were likely to persist.

On receipt of that report, the defendant instructed her own orthopaedic surgeon, Mr David Pemberton. He reported on 24th May 2005. He recorded the claimant's account that, despite physiotherapy, she had not had any long-term relief from her symptoms. He described the nature of those symptoms, which were the same as those that had been described to Mr Maheson. On clinical examination, Mr Pemberton found very little abnormality. After a lengthy review of the claimant's medical records, Mr Pemberton expressed the view that Mrs Hardisty's prolonged symptoms could not be attributed to the whiplash injury. He accepted that the symptoms suffered immediately after the accident were attributable to it. He said that, in most cases, symptoms from such an accident would resolve in a matter of weeks. He acknowledged that, in a few cases, such accidents were followed by chronic symptomatology but said that the relationship between the accident and long-term symptoms was not understood. He therefore concluded that Mrs Hardisty's long-term symptoms were of unexplained origin. It should be noted that Mr Pemberton did not suggest that it appeared to him, from examination of the medical records, that Mrs Hardisty's symptoms had at any stage resolved or subsided for a significant period.

Thereafter the two orthopaedic surgeons met in an attempt to identify areas of agreement and disagreement. They agreed that the claimant had suffered a whiplash injury which had been appropriately treated. They agreed that after such an accident, they would expect acute symptoms to resolve within weeks to a low level, which low-level symptoms would themselves resolve within 18 months to 2 years after the accident. They would not expect long-term symptoms of sufficient severity to interfere with the patient’s ordinary social or domestic activities. They disagreed as to whether, in a few cases, long-term symptoms could be attributed to a whiplash injury. Mr Maheson maintained his view that whiplash injuries can give rise to prolonged symptoms and said that, in Mrs Hardisty's case, her prolonged symptoms were due to the effects of the accident upon her spine, affected as it already was by symptom-free degenerative change. Mr Pemberton disagreed. He considered that the pre-existing changes were not sufficient to account for the symptoms complained of. Moreover, the immediate effects of the accident were not severe enough to have given rise to continuing symptoms so long afterwards. I quote from page 170 of the appeal bundle, where the areas of disagreement were recorded. Mr Pemberton’s view was:

On the basis of that meeting, battle was joined. At the start of the trial, there was a discussion between the Recorder and counsel as to the issues to be decided. Both counsel agreed that there were three issues. The first was causation: were the continuing symptoms attributable to the accident? If yes, issue 2 arose. That was: would Mrs Hardisty have suffered similar symptoms of pain and discomfort in the neck in any event, even if she had not had an accident and, if so, how soon would those symptoms have manifested themselves? That issue was referred to as the "acceleration point". The third issue was the quantification of loss.

Mrs Hardisty gave evidence. She was 26 years old at the time of the accident and in good physical health. She referred to her witness statements in which she had recounted the happening of the accident, saying that her motor car had been struck from behind by the defendant's. She referred to Mr Maheson's report as her evidence of the consequences. She said that her symptoms of pain, discomfort and frontal headache had persisted. She said that from about November 2001 until February 2002 there had been some diminution in the frequency of her headaches, but from February 2002 they had occurred more frequently. In April 2002, she had begun a course of physiotherapy which had given limited relief. In June 2002 she had had another course of six sessions of physiotherapy, which again had provided some relief. She had been given a special pillow which helped, in that her neck was less stiff in the mornings when she awoke. However, the relief from physiotherapy was short-lived. Then, at paragraph 10 of her statement, she said:

However, by August 2003 I was still suffering with neck pain and associated headaches. As Ms Lawrie's treatment had not provided a permanent resolution to my symptoms I decided to seek alternative treatment. I attended the Kensington Court Clinic and underwent 4 sessions of Osteopathy, the cost of which I funded.

I underwent an MRI scan at the Vale Clinic on 30th September."

In cross-examination the claimant was asked about the variability and periodicity of her symptoms. She was asked whether she had ever been symptom-free or almost so. She said that, although the severity of her symptoms had waxed and waned and the frequency of symptoms had varied, she had never been symptom-free or even nearly symptom-free for a substantial period. When pressed, she asserted that she had never been free of symptoms for a period of as much as three months, which was what was suggested to her. She thought she had not been free of symptoms for as much as a month or six weeks.

Various entries in the medical records were put to her. In particular, the physiotherapist who had treated her in 2002 had recorded in the notes on 8th August 2002 (at the end of the second series of sessions) that the claimant was much better, had full movements of the cervical spine and no headaches. The special pillow had helped tremendously. As to that the claimant said that she could not understand why the physiotherapist should have said that, as she, the claimant, was not completely better at that time. She could not answer for what had been written in the notes. She said that what had actually happened was that the physiotherapist had discharged her, but advised that she should return if her symptoms worsened as she was not completely pain-free. And indeed they did worsen in the September and she had returned for another series of sessions from October to November 2002.

It was then put to the claimant that, from about June 2002, she had visited her GP several times but had not mentioned her whiplash symptoms. The claimant agreed that that was so. Her explanation for that was that she was consulting her GP about another matter. She had not bothered her GP about her whiplash symptoms because she did not think that her GP could do anything to help her in that regard. She had been having physiotherapy, and in any case by July 2002 Mr Maheson had told her that she would make a gradual recovery within 18 to 24 months of the accident. In effect, although she did not use this expression, she thought she had to be patient. However, she asserted that her symptoms had continued during this period in late 2002 and into 2003. They had worsened in July 2003, which had prompted her to try osteopathy and when that did not work to ask her GP to refer her to a spinal surgeon. It was not put to her in terms that, between late 2002 and July 2003, she had had a substantial period in which her symptoms had to all intents and purposes resolved.

The claimant was asked in detail about her claim for the additional duties her husband had carried out for her on account of her inability to perform certain household tasks. In her schedule of special damage, the claimant had identified various periods in which her symptoms had been particularly bad and in which she claimed she had required quite extensive assistance. It was put to her that the fact that she did not require extensive help at other times implied that she was not suffering from symptoms at those times. That she denied, asserting that she had simply identified her worst periods in the schedule; but that at all times she had had symptoms and had required some, albeit less, assistance from her husband.

At no time in cross-examination was it suggested to the claimant that she was anything less than a witness of truth, doing her best to assist the court.

In re-examination, her counsel asked her to explain again why she had not sought help from her GP during the period in late 2002 and early 2003. She explained again, as she had before, and she then voluntarily referred to a letter (which was part of the medical records) which she had written to her GP on 3rd September 2003. In that letter, she had asked her GP to arrange for her to see a spinal surgeon because she was still suffering from symptoms. That letter is important in the context of this appeal. I shall read some extracts from it. It was apparent that the claimant had seen her general practitioner on the day on which she wrote the letter. She said that she wished to emphasise a couple of points from that day's appointment. She said:

When Mr Maheson gave evidence, he affirmed the views expressed in his reports. In cross-examination, a new issue was put to him and he agreed with defence counsel, quite readily, that if the claimant's symptoms had very largely subsided for a matter of some months and then restarted, that would mean that there had been a break in causation from the accident and that the later symptoms would not be attributable to the accident. However he added that this was not what had happened to the claimant. He had answered the question as a hypothetical question. This was the first time that this issue had been raised in the proceedings.

Mr Pemberton gave evidence. He explained his views about the aetiology of whiplash injuries, as set out in his report. He too said that if there were a cessation or substantial cessation of symptoms, followed by a resumption of symptoms or a significant deterioration in symptoms, that would mean that there was a break in causation from the accident. In short, the two doctors were in agreement on this new point.

From that moment, the focus of the trial shifted. The Recorder observed that the main issue in the case was now whether there had been such a cessation. When Mr Hassall for the defendant began his closing address, that became the only question of real interest. After some discussion between counsel and the Recorder, a period from November 2002 until August 2003 was identified as a possible period of cessation of symptoms, such as would justify the conclusion that there had been a break in causation. That became Mr Hassall's submission and he relied on several aspects of the evidence in support of his submission that there had indeed been a cessation of symptoms during that period. When, in the course of argument, he was asked about the claimant's letter to her GP of 3rd September 2003, in which she had written that she had had headaches regularly over the last 2 years (an assertion which was plainly incompatible with the notion that she had been virtually symptom-free for as long a period as nine months immediately before the writing of that letter), Mr Hassall suggested that the letter had been written in the context of litigation and should be regarded with circumspection. He did not in terms suggest that the contents were dishonest, but he invited the Recorder not to rely on it as support for the claimant's evidence.

Mr Thomas, counsel who then represented the claimant, complained that the cessation point had not been taken until very late in the trial. Having made his complaint, he then made his submissions on the cessation point, inviting the Recorder to accept that the claimant was an honest witness, had asserted that her symptoms had been more or less continuous, and in particular relying on her letter of 3rd September 2003 in support of her account.

The Recorder gave an extempore judgment. After introducing the issues which counsel had identified in opening, he expressed his opinion about the claimant as a witness. He said that she was honest and straightforward. Then he said:

Mr Hillier submitted that in that passage it appeared that the Recorder was saying that he regarded the claimant as a reliable witness, as well as an honest one. I tend to agree with Mr Hillier that that does seem to be so although the Recorder does there seem to reserve the possibility that he might reject some aspects of the claimant's evidence as inaccurate, although not as dishonest.

The Recorder then referred to the medical evidence and observed that there was a happy degree of unanimity. He said:

The Recorder then defined what he meant by cessation. He said this:

Thereafter the Recorder embarked upon an examination of the evidence to see whether there had in fact been a cessation of symptoms. He mentioned the claimant's witness statement and summarised the passages which I have already read. He noted that the claimant completed a course of physiotherapy in November 2002 and said that her symptoms seemed to ease. Then he quoted paragraph 11 of her statement, which began:

However, during the same passage in her evidence, she told Mr Hassall that the frequency of the symptoms would have been the same throughout, for which I infer that she meant that symptoms were continuing - 'waxing and waning' I think was the expression the doctors used - waxing and waning throughout this period, and therefore there was no significant gap.

It is not doing just that. It is also setting out matters in a way which seem to me, and I accept Mr Hassall's submission here, go beyond the ordinary doctor/patient relationship. But that does not mean it is not right. It does not mean it is not true. However, it does mean that I have to look at this letter and evaluate, against the other objective evidence, whether what is said in it is objectively correct. It is, in legal terms, a self-serving letter. In legal terms, it has slightly more weight because it is written closer to the time, but not much more weight than what the witness herself says in the witness box. So to that extent, without denigrating it, in technical terms it is self-serving."

The Recorder then considered Mr Maheson's second report, and he said:

Next the Recorder referred to the claimant's evidence that she had found physiotherapy beneficial. He went through her account of the various sessions. He then referred to the agreed fact that the claimant had not had any physiotherapy between November 2002 and August 2003, when she had tried osteopathy. He concluded that because she had not sought treatment during this period, she had in fact had a cessation of symptoms during that time. He put it in this way:

There is no doubt, because she is an honest lady and what she said she believes to be true, that the symptoms which she has described to me have come back. But given the common ground between Mr Maheson and Mr Pemberton that if there is a cessation, in the sense that I have already found, they believe that in that event there is a break in the chain of causation, I must find, because I have no alternative on the evidence and on the findings I have already made, that the recurrence of the genuine symptoms which have come back in late 2003 and which have persisted are due to a cause other than the collision which occurred in 2001. So the first issue I have to decide is therefore resolved against Mrs Hardisty. I find that the collision which occurred on the 3rd October 2001 caused conventional whiplash injury symptoms, from which she had substantially recovered by the November of the following year."

That resolved the first issue against Mrs Hardisty. The Recorder observed, correctly, that there was no reason in those circumstances for him to consider the issue of acceleration. He therefore quantified the claim, and no issue arises on quantification in this appeal.

In this appeal Mr Hillier makes two submissions. First, he submits that there was a logical inconsistency in the Recorder's thought processes. He focused on the documentary evidence that there had been no treatment, physiotherapy or anything similar, between November 2002 and August 2003 and concluded that that alone demonstrated a cessation, without considering and dealing with the claimant's own evidence and in particular the evidence of her letter of September 2003.

Mr Hillier drew attention to the way in which the Recorder appeared to misunderstand the claimant's evidence at paragraph 11, when, after saying that her physiotherapy in late 2002 had eased her symptoms, she said that by August 2003 she was still suffering. The Recorder had interpreted that as suggesting a gap, when in fact it did no such thing. It actually, submitted Mr Hillier, suggested a continuance of symptoms. This misunderstanding, he submitted, had set the Recorder off on the wrong track and he had then compounded his error. He had wrongly said that the claimant had given a slightly different account of her symptoms in oral evidence. She had not. Her oral evidence had been entirely consistent with her written statement. Indeed she had, he submitted, been entirely consistent throughout. She had always claimed both in her oral evidence and her statements and when speaking to the doctors that her symptoms had varied but had never stopped for any appreciable length of time. The longest gap she had ever accepted had been four to six weeks. Moreover, her letter of 3rd September was entirely consistent with and supported the rest of her evidence.

The effect of the finding that there had been a cessation of the claimant's symptoms implied, submitted Mr Hillier, a rejection of her evidence as unreliable, although not necessarily dishonest. Mr Hillier accepted that the Recorder was entitled to reject the claimant's evidence as unreliable, provided that he based himself on a sound assessment of her evidence. But his assessment had been flawed in the ways to which I have just referred.

Even more important, if the Recorder was to hold that there was a cessation between November 2002 and August 2003, he had logically to hold that the letter of September 2003, with its claim of regularity of headaches over the last 2 years, was simply wrong. As that letter had been written so close to the material time, the Recorder could not logically say that the claimant was mistaken in what she had said in that letter. Either she was right or she was telling a deliberate lie. The Recorder did not find that she was lying: he said only that the letter was self-serving. In the context of this case, submitted Mr Hillier, that implied a rejection of its truth and accuracy. That meant, although the Recorder did not say so, that he was rejecting it as untruthful. As the Recorder had stressed that the claimant was honest, he had put himself in an impossible position. His judgment contained a fundamental logical inconsistency.

Despite Mr Hassall's valiant attempts to persuade us to the contrary, I regard Mr Hillier's submission on this point as unassailable.

The Recorder's finding on cessation entailed a finding that the claimant was badly mistaken in her repeated assertions that her symptoms had been virtually continuous. That in itself was difficult to reconcile with his commendations of her as a witness, which I cited earlier. But in order to reject her contemporaneous account given in the September 2003 letter, the Recorder had logically to reject her evidence as dishonest. She could not have been innocently mistaken about the regularity of her symptoms when writing at that time. Thus I would accept Mr Hillier's submission that the Recorder's decision was logically flawed.

Mr Hassall sought to persuade us that there was other evidence on which the Recorder could have based his finding that there had been a cessation. For example, he could have relied on the inferences to be drawn from the way in which the claim for assistance had been formulated. We should, he submitted, uphold the Recorder's conclusion on other grounds. However, it appears to me that the Recorder did not make any findings about those other matters and we do not really know what he thought about them: he based his decision squarely on only one matter, the inference to be drawn from the absence of treatment. So I would reject that submission of Mr Hassall's. In any event, it seems to me that whatever basis the Recorder adopted for holding that there was a cessation, his conclusion would be open to the same criticism that his rejection of the claimant's evidence of regularity of symptoms was at odds with his finding that she was an honest witness.

Accordingly, I would hold that his decision on causation cannot stand.

In view of that, it is not strictly necessary for me to deal with Mr Hillier's second submission. I do so because I consider that it has merit and it leads to the same conclusion that the Recorder's decision cannot stand. Mr Hillier submits that the way in which the issue of cessation arose resulted in an unfair trial. It was common ground that the issue was not raised at all before the trial, despite lengthy discussions between the doctors who had all the medical records available to them. It was not raised until Mr Maheson was in the witness box in cross-examination, at a time after the claimant had completed her evidence. Mr Hillier submitted that the case against her on cessation was never properly put to her. It was never put to her that she would have gone for more physiotherapy if she had been suffering symptoms during that relevant period. It was never put to her that the letter of 3rd September 2003 was written for the purpose of enhancing her claim for damages. Mr Hillier submitted that these shortcomings resulted in an unfair trial.

Mr Hassall submitted that the case had been adequately put to the claimant. If she had been asked about the connection between her symptoms and her decision to go for more physiotherapy, she could only have repeated her earlier evidence that her symptoms had never ceased or subsided for a significant period. If she had been asked about her reasons for writing the letter of 3rd September, she could not have said anything of assistance to her case. I, for my part, cannot accept that. We do not know what the claimant would have said in answer to these questions. I can envisage that, if asked why she had written to her GP in the way she did, she might have explained that she wrote because she was expecting her GP to write a letter of referral to a consultant and wished to ensure that her GP had all the relevant information to hand. We do not know what the claimant would have said, but I am not prepared to assume that, if those questions had been put, the claimant would not have been able to deal with them in a way that was helpful to her case. It is a cardinal principle of our adversarial system that a party should know the case made against him or her and should have the opportunity to deal with it. This claimant did not. True it is that her counsel might have made more fuss about what had happened and might have insisted that the claimant be recalled for further evidence. However, the primary reason why the case was not put to the claimant was because the cessation point was only thought of and only arose at a very late stage.

In my judgment the fairness of this trial was compromised by the lateness of the stage at which the cessation issue arose. I do not propose to apportion blame for this, save to say that it is clear that neither the claimant nor her counsel was primarily responsible. For this additional reason the Recorder's decision cannot stand and, in my view, the appeal should be allowed.

What should happen now? It is clear in my view that the case must be remitted for some form of rehearing. This court cannot reach decisions on the necessary issues. What should be the extent of the rehearing and who should conduct it? Mr Hillier submitted that the rehearing should go to a different judge. The claimant could not be expected to have confidence in the result if the Recorder were to resume conduct. Justice must be seen to be done. Mr Hassall did not oppose that submission. I would agree that the case must be remitted to a different judge.

The real dispute on disposal arose on the issue of whether there should be a new hearing de novo, as Mr Hassall submitted, or whether the new hearing should start from the basis that the claimant had won on the issue of causation. Mr Hassall was inclined to accept that if this court were to allow the appeal on the cessation issue, that issue would be closed and it would not be open to the defendant to argue cessation again. However, he submitted that it should be open to the defendant to run her original case on causation, as set out in Mr Pemberton's report. He had never abandoned that case and the Recorder had not ruled upon it. The defendant, Mr Hassall submitted, was entitled to run it again.

Mr Hillier argued that the defendant should not be entitled to run his causation issue again. Counsel had implicitly abandoned it during the closing submissions at the trial, even if he had not expressly done so. Mr Hillier submitted that the retrial should start from the basis that the claimant had won on causation and that the only live issues should be the acceleration issue and re-quantification.

Initially I confess that I found this rather a difficult issue. It appeared to me that the defendant had not expressly abandoned the original causation argument, although counsel had assented to the Recorder dealing only with the cessation issue. I could see some merit in the argument on both sides.

However, the point was clinched for me when we were referred to Mr Hassall's skeleton argument for this appeal. In the final paragraph, he faced the possibility that the appeal might be allowed and submitted that, in that eventuality, the court should hold that the claimant's symptoms had only been accelerated by 2 to 3 years. That submission was based on the proposition that we would be prepared to reach a conclusion as between the differing views of the two doctors on the acceleration issue. I do not think that we could or should attempt that, simply on the basis of the transcript of the doctors’ evidence. However, underlying Mr Hassall's submission was a recognition that, if the appeal were allowed, the defendant would have to accept that she had lost on causation and that the only remaining issues were acceleration and re-quantification.

In the light of that, it is, in my view, fair and just that the defendant/respondent should be held to that submission. I would therefore propose that a direction should be made that the case should be remitted for a rehearing limited only to the issues of acceleration and re-quantification. Causation must be taken as having been determined in the claimant's favour.

I would allow the appeal on those terms.

LORD JUSTICE NEUBERGER: I agree that this appeal should be allowed on the basis of the matter being sent back for a rehearing before a different judge on the basis described. There is nothing I can add to the full reasons just given by Lady Justice Smith for allowing this appeal and remitting the case. They are reasons with which I wholly and respectfully agree.

I wish however to say a little more about the basis upon which we are remitting the case. That is partly because I was initially of the view that the defendant should not be treated as effectively having abandoned his case on causation, and partly because the issue is potentially of some significance.

As a matter of principle and practicality, it seems to me that a party should not lightly be treated as having abandoned a point, particularly where, as here, the point has been raised and discussed in the party's expert report, has been the subject of oral evidence, cross-examination, and argument at trial. (In this case, Mr Hillier for the claimant accepted that the causation issue had been "held onto" in the closing speech of Mr Hassall for the defendant, albeit "not particularly strongly".)

Normally, abandonment of a point will only be established by express words, preferably in writing, by the party who raised the point. It can however arise by implication, in which case it may frequently be characterised as being or arising from a species of estoppel. This would, I think, normally require unfairness (which could not be made good in any other way) to the other party, if the party whose point it was is not to be treated as having abandoned it, and where the latter party was in some way responsible for the unfairness.

In the present case, in light of the history of the matter which has been fully set out by my Lady, I can see how it might be thought by the claimant to be unfair if the question of causation could be raised by the defendant on remission. Nonetheless, subject to one point, it would have seemed to me that it could not properly be said that the defendant had abandoned, or should be treated as having abandoned, the causation issue.

There are, as I see it, two bases upon which the claimant can contend that it would, in light of the conduct of the case below, be unfair if the defendant could maintain the causation point when this case is remitted for rehearing. The first is that the defendant's counsel did not challenge the Recorder's view, expressed in argument and in the judgment, that the cessation issue was determinative, and that causation therefore was not really in issue. Secondly, it can be said, as my Lady has mentioned, that counsel for the defendant was not as open about the issues as, perhaps with some wisdom of hindsight, he should have been. From the start of the hearing the cessation issue had become a major point for the defendant, possibly his main point, at least in the mind of his counsel.

Although those are points which have some force, they would in my view be insufficient on their own to found a basis for holding that the defendant should be treated as having abandoned the causation issue. The Recorder's view that cessation was the sole issue founds the basis of the claimant's success on this appeal. To enable the claimant to benefit from that appeal to the extent of shutting out the defendant from arguing causation when it forms the very basis of her successful appeal, would be in my view not only disproportionate, it would involve the claimant virtually having her cake and eating it. If she obtains a rehearing because the Recorder wrongly concluded that cessation was the decisive issue and that causation was not relevant, it would be a little paradoxical, in the absence of any other point, to remit the matter effectively on the basis that the Recorder was right.

As to the criticisms that might be made of the defendant's counsel, I agree that he should have made his case clearer from the inception of the hearing. I should emphasise that there is no question of his having behaved improperly: such an allegation has not even been hinted at, quite rightly, by Mr Hillier. I also consider that the claimant's counsel below (who was not Mr Hillier) was also partly to blame as he did not apply to recall his witness or argue in his closing speech that there had been any unfairness. Indeed it can be said the Recorder was also to blame. However, the primary responsibility lay with the defendant.

Nonetheless, it seems to me that it would be insufficient, on the history I have so far considered, to say that it would be unfair on the claimant if the defendant were permitted to run the causation point and to say that the issue should be treated as having been abandoned. The matter is having to be remitted anyway. It is not as if the claimant can be said to be irrevocably prejudiced as a result of either of the two factors I have identified, if the defendant can argue causation (other than that the claimant may lose on causation - but that is plainly not enough). Nor has the defendant done something or failed to do something so as to justify abandonment being inferred. The causation issue was, as I have said, maintained to a greater or lesser extent throughout the trial, until closing speeches and even then it was not abandoned expressly.

It seems to me that the vital point in this case, in relation to which this background is not entirely irrelevant, is to be found in the defendant's respondent's notice and the skeleton argument filed on behalf of the defendant. In section 8 of the respondent's notice the question raised is, "What decision are you asking the appeal court to make?" and the answer is, "See Respondent's Skeleton Argument." The skeleton argument's conclusion is in paragraph 46 which starts in these terms:

The claimant's appeal is, for the reasons given by my Lady, allowed. Therefore, what we are being asked to do by the defendant is to find damages (i.e. causation is accepted) on a certain basis. The effect of my Lady's reasoning, as reflected in the order she proposes, is that we are not in a position to make such a finding, but we think it right to send the matter back to another judge effectively to consider the question raised by the claimant, namely cessation. On the basis that the defendant succeeds on that, we are then directing the judge to consider the very (and, crucially, the only) matter which the defendant would invite us to consider, namely the correct order for damages.

In those circumstances, this appeal having been conducted on the basis that the claimant and the defendant were each seeking the relief specified in their notices (and in particular what the defendant was seeking if this appeal is allowed), it seems to me that it is fair to conclude, as my Lady has done, that the defendant should be treated as having abandoned its case on causation.

Accordingly, I entirely concur with the reasoning and conclusions reached by Lady Justice Smith.

LORD JUSTICE PILL: I agree with Lady Justice Smith. The appellant was consistent in her statements and evidence that there was no substantial period during which her symptoms had resolved. Reference has been made in argument and by Lady Justice Smith to the appellant's pre-trial statement, to her evidence, and to her letter of 3rd September 2003 to her general practitioner. I accept the submission of Mr Hillier, for the appellant, that the judge must be taken to have accepted the appellant's evidence as truthful and reliable. He found the appellant to be "honest and straightforward" (paragraph 7); that she was "making the best of it" (paragraph 7); that she was honest and not mistaken (paragraph 8), which, in the terms frequently used in this context, I take to mean credible and reliable.

The judge, having made those findings, went on to consider the extent and duration of the treatment the appellant received, stating (at paragraph 26) that when there were significant symptoms the appellant sought physiotherapy, the respondent's suggestion then being that it should be concluded that where no treatment was requested there were no symptoms. At no stage, however, did the judge state in terms that he did not believe the appellant. The judge did not retract in terms from his earlier findings, to which I have referred.

The judge stated the issues at paragraph 6 of his judgment:

When the case was opened, there was an issue between Mr Maheson (for the appellant) and Mr Pemberton (for the respondent), both witnesses being consultant orthopaedic surgeons. Mr Pemberton stated, in his report at page 159 of the bundle:

Mr Maheson expressed his opinion at page 162 of the bundle. He maintained his prognosis:

In the course of the trial an issue arose which, if the respondent was successful upon it, defeated the appellant's claim. The doctors agreed in the course of their evidence that if there was a substantial period following the accident when there were no symptoms, the present symptoms could not be attributed to the accident. I refer to that by way of shorthand as the cessation point, and the issue stated in the medical reports as the general point.

The cessation point emerged only after the appellant had given evidence, and she was not cross-examined specifically about the alleged cessation subsequently relied upon in argument. No application was made on behalf of the respondent to put the issue to the appellant once the point had arisen. The judge's finding on credibility, as we have decided it was, made his finding on the cessation point impermissible and the case must be remitted. I agree with Lady Justice Smith on both grounds of appeal raised by Mr Hillier, and for the reasons which Lady Justice Smith has given.

The question then arises as to the terms of the remission, and I too wish to say a little more about that. It is agreed, rightly in my view, that any remission will have to be to a different judge. It is common ground that issues 2 and 3 identified by the judge, to which I have referred, will need to be retried. The question is whether, events having taken the course they did at the trial and subsequently, there should be a remission for a full hearing, as the respondent contends, or whether the remission should be confined to issues 2 and 3.

It is common ground that a remission on a general basis will require the appellant to give general evidence again, though some evidence will be necessary in the case of a remission on a more limited basis. That will make necessary a second assessment of her credibility on the general issue. A reassessment on acceleration and consequences is in a different area. A second judge could not be expected to try the issue of credibility on the basis of the transcripts of evidence at the first trial. That is an unsatisfactory situation, in my judgment, as a starting point for a remission. A finding of credibility having been made by the judge, and one which, for reasons which Lady Justice Smith has given, cannot be reversed in the way the judge sought to reverse it. It would be unfortunate if the entire question of the appellant's credibility had to be considered at a trial on a second occasion and by a different judge.

However, for the respondent Mr Hassall submits that the general issue was left open at the conclusion of the first trial. All that was decided at that trial was the cessation issue. The respondent should have the opportunity, he submits, now to argue an issue which was simply put over for argument in the event that the respondent failed on the cessation point.

In my judgment, the respondent should not be permitted that opportunity. I respectfully disagree with Lord Justice Neuberger that the determinative point is the last paragraph of the skeleton argument prepared on behalf of the respondent for this hearing. Indeed I would be reluctant to base an abandonment solely upon a single paragraph in a skeleton argument, such as it was. It may be, as Lady Justice Smith says, that the paragraph clinches the issue, but in my judgment there is a good deal more to be considered when the point is to be determined.

I make the general point that the cessation point involved, to the respondent's knowledge, a consideration of the appellant's credibility. As I have already said, it is plainly undesirable that a second judge should have to reconsider that question when some of the relevant evidence would need to be given at both trials.

In my judgment, the judge was under the impression that the case was to turn, subject to issues 2 and 3, on the point identified in the course of the trial. First, in the transcript of Mr Pemberton's cross-examination by Mr Thomas, counsel then appearing (Mr Hillier not having appeared at the trial), the question is asked by the Recorder:

Secondly, in his closing submissions Mr Thomas referred to the point at page 79 the bundle. The Recorder responded:

Thirdly, Mr Hassall did not address the judge in any detail on the general point in his closing address. He devoted a single paragraph to it. His explanation to this court, that he did not address the judge in detail on Mr Pemberton's evidence because Mr Pemberton had only recently given that evidence and there was no need to address the point, I find, with respect, unconvincing.

Fourthly, having dealt with the cessation point in his closing address in some detail, and rightly so, Mr Hassall went straight on to what he called the secondary line of defence, that is the acceleration point, and he went on to deal with that in some detail.

Fifthly, Mr Hassall was given the opportunity to address the judge following the final address on behalf of the claimant by Mr Thomas. It appears that there was a difficulty with public transport and it was not Mr Hassall's fault which may have caused or contributed to that unusual course of events. The judge was addressed by Mr Hassall on the cessation point. It is clear from observations, to which I do not propose to refer in detail or at all, that the judge's patience was tested by Mr Hassall's persistence on the point. In the course of Mr Hassall's submissions, the Recorder observed:

Sixthly, the judge did not refer in his judgment to the general issue. He could easily have done so, had it remained open. He was not invited to make a statement that the general issue remained open.

Seventhly, it is all the more surprising having regard to the respondent's present submission that the judge did not in terms refer to the general issue, when he did refer in terms to the acceleration point, stating that he did not need to determine it. In relation to that, the judge stated:

Eighthly, in his skeleton argument for the purposes of this appeal, drafted in March 2006, the point now made was not made in terms. (It had not been made in terms in the respondent's notice whereas the acceleration point, which had no more and no less relevance than the present point, was mentioned. I do not refer to that as a separate point.)

Mr Hassall attempted to rely, in claiming that he had raised the point in his skeleton argument, and he did so persistently, on paragraphs 36 to 39 of his skeleton argument. At paragraph 35 the general issue is set out. Paragraph 36 merely states that the judge made no finding on the point. Paragraph 37 merely states that, if the appeal were to succeed, there should be a retrial and not a final order made in this court. The members of this court agree with that, but the basis for a remission now argued was not put forward in that paragraph. Paragraph 38 refers to a widespread public belief about whiplash injuries, that they do have long-term results. That has nothing whatever to do with the present point at issue. Paragraph 39, which is a development of the widespread belief amongst the public and litigators point, does, it is right to say, conclude at the last sentence with the words:

There then comes paragraph 46, to which Lady Justice Smith first drew attention, and which she describes as the clinching point:

I agree with Lady Justice Smith's reasoning upon that paragraph. However, I find it significant, not because it determines the issue in itself, but because it reflects the conduct of the respondent's case throughout, to which I have referred in the earlier points made, conduct which, in my judgment, requires that remission be on the narrower basis.

It would in my judgment be grossly unfair to the appellant. That is the view the court should in my view take. It is not merely a perception of unfairness by the appellant. Additional costs would also be incurred and there would be further use of court time, if there is a complete retrial de novo. A complete reassessment of the appellant's credibility would be involved. If the respondent had attempted to keep the point open, her representative should have done so expressly, and, what is more, should have made it clear to the judge that it was being kept open. I agree that remission should only be on issues 2 and 3.

This has been an example of what appears to be an attractive short cut being taken at the respondent's instigation, though the judge was led to participate in it. The short cut not having achieved the success which the respondent sought, the respondent should not now be permitted the opportunity to traverse the same ground by another route. To follow Lord Justice Neuberger's feeding example, it is the respondent who, having eaten the cake, now wants another cake.

While there has been no formal abandonment of their case on the general point, the respondent's conduct and the course events took were such that it would be unjust to permit the respondent to have a complete rehearing.

I agree that the appeal should be allowed on that basis.