Ellis v The Environment Agency

This is a renewed application for permission to appeal a judgment of HHJ Hollis given on 19 November 2007, when he awarded damages to the claimant in respect of an accident that had occurred on 9 June 1998 while he was working for the Environment Agency, the defendant in the action and the present applicant. Primary liability for the accident of June 1998 had been conceded and contributory negligence is no longer an issue. The main issue which arose in the claim was whether a further accident which the claimant suffered in April 2000 was a consequence of the injury he had sustained in June 1998, or whether that second accident was unrelated to the first injury.

In the first accident the claimant was caused to fall about seven or eight feet to the ground from a loading shovel. He hurt his back. He returned to work after about six weeks but it was his case that his back continued to give him trouble during the ensuing months and right up to the accident in April 2000. He had another accident in May 1999 but his contention was that this had not significantly affected his back. It was an issue at the trial as to whether it had.

In April 2000 his back gave way when he was walking downstairs and he fell rupturing the cruciate ligament of his right knee. He claimed that since that accident he had been completely unfit for work. Despite operative treatment he was still suffering from his knee. Also he had depression and his life had been badly affected. Much the greater proportion of the damages that he was claiming related to the accident of April 2000 and only a small proportion was related directly to the accident of June 1998.

The case was bedevilled by the appointment of a single joint expert, Mr Staniforth, an orthopaedic surgeon. He provided a number of reports. Initially he was of the view that the accident of 1998 had directly led to (causally) the fall downstairs in April 2000. He was questioned in correspondence by the defendant’s solicitors and came to express the view that there was a constitutional element in the claimant’s back condition, and that his back had been damaged first by the accident of June 1998 and also by the accident in 1999. He attributed percentages to these varying causes: 70% to the constitutional condition, 20% to the accident of June 1998 and 10% to the accident of May 1999.

At the trial he was in an unenviable position. It seems to me on reading his oral evidence that he made a number of concessions when being questioned by Mr Alliott but also sought to stay with his original opinion which said that there was a causal link between the accident of June 1998 and the fall downstairs in April 2000. The judge had a difficult task in that Mr Staniforth’s evidence was by no means clear. In the judgment the judge set out in some length the inconsistencies in Mr Staniforth’s evidence and the way that it had developed. But then in paragraph D(vi) of the judgment he said:

“Having reviewed all of the evidence I am satisfied on the balance of probabilities that there is a continuum…of significant back problems in this case arising from the serious fall which constituted the 1998 accident and which continued after his two visits in 7/98 to the osteopath and which ultimately led to the 2000 fall down the stairs, and that but for that accident the fall would not have happened. This was a man who had not experienced back problems until 6/98, and then did so. These worsened after the apparently more minor accident of 5/99 and led in time to the twinge which caused his fall down the stairs in 2000.”

On the basis of that, the judge held the defendant liable for the consequences of the April 2000 accident, save to the extent that he reduced the overall damages by 10% to take account of two factors. One was the fact that the claimant was going to suffer from back troubles in the future in any event, and the other was the fact that the May 1999 accident (which had not been the defendant’s fault although it was an accident at work) had made a contribution to the deterioration in his lumbar spine.

In his first skeleton argument, Mr Alliott submitted that the judge had accepted Mr Staniforth’s apportionment as between the three causes of the back condition and that, having accepted that, it was wrong that he should have reached the conclusion that he did. I rejected his application on paper because it seemed to me that the judge had not accepted Mr Staniforth’s apportionment, that he had merely been reciting it, and that the judge had accepted Mr Staniforth’s earlier opinion, namely that there was a direct causal link between the June 1998 accident and the fall downstairs in April 2000. He was saying that this was plausible because there had been continuing symptoms from the first accident right through to April 2000. That had been factually in dispute but the judge had found in favour of the claimant on that issue.

Today Mr Alliott has renewed his application. He seeks to persuade me that it must be inferred that the judge had accepted Mr Staniforth’s apportionment because he deducted 10% from the overall damages; therefore he must have accepted Mr Staniforth’s assessment that there was 10% attributable to the accident of May 1999. His case is that the judge ought to have held the defendants liable for only 20% of the consequences of the accident of April 2000, the fall down the stairs. He submits that the judge was wrong to take the ‘but for’ approach to causation and then to abandon Mr Staniforth’s opinion as to apportionment.

I am by no means persuaded that this was a case in which apportionment is appropriate. In fact my inclination is to think that it is not and that the judge was entitled and correct, having accepted the claimant’s evidence, to hold that but for the accident of 1998 the fall down the stairs would not have happened and therefore the chain of causation was established. However, I am persuaded that Mr Alliott should be allowed to take this point on appeal before the full court. Mr Alliott sought to cite to me a judgment of my own in the context of vibration white finger where I did indeed apportion damages on the basis that the defendant should only have to pay for the harm caused by his breach of duty. My present view is that it is not appropriate to extend that kind of exercise to the circumstances we have here, but I am persuaded that the point is arguable. Accordingly permission is given.

The case should be heard by a court of three. One of the three could be a High Court judge; two Lords Justices, possibly one High Court judge. There must be at least one LJ with significant personal injury expertise.