Dingley v Chief Constable of Strathclyde (No.1)
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD CLYDE |
| Judgment Date | 09 March 2000 |
| Judgment citation (vLex) | [2000] UKHL J0309-1 |
| Docket Number | No 4 |
| Court | House of Lords |
| Date | 09 March 2000 |
[2000] UKHL J0309-1
HOUSE OF LORDS
Browne-Wilkinson
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Lord Clyde
My Lords,
I have read in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. For the reasons which he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives I too would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he has given I would also dismiss the appeal.
My Lords,
The appellant is a retired police officer. He was working in the course of his employment as a constable of Strathclyde Police on 11 April 1990 when he was injured in a road accident near the Townhead interchange on the M8 motorway. The driver of a police van in which he was travelling lost control of the vehicle. It swerved violently from side to side, overturned, spun round and landed on its roof. The appellant was thrown about as it did so. He struck his head on a wooden partition inside the vehicle and suffered a whiplash injury to his neck. He emerged from the vehicle dazed and with a sore neck but no serious injuries. He was taken to Stobhill Hospital where it was found that he had an abrasion to his scalp but that his central nervous system was intact and that he had not lost consciousness. He was discharged and returned to the police office before being sent home. Although he had a stiff neck the next day, he worked a normal shift. He was then off duty for three days. He returned to his normal duties at the start of the next week.
The whole event would have been passed off as nothing more than a lucky escape in the course of what turned out to be a minor accident had it not been for the fact that the appellant began to develop the symptoms of multiple sclerosis ("MS") seventeen days after sustaining his neck injury. On 28 April 1990 he was on duty escorting an Orange Walk. He had been walking for about one and a half hours for a distance of two miles or so when he noticed that he was "dragging" his left leg. He felt as if his leg had gone lame. He was able to complete the march and the problem went away after he had rested. But it recurred about two weeks later when he was walking home. He had walked for about a mile when he again noticed that his left leg was dragging. He eventually had to take a taxi to get home, but once he was there his leg recovered after resting. Various other events then followed, none of which at the time seemed to be particularly significant. In July 1990 he had difficulty in maintaining his balance while strawberry picking. In August 1990 he consulted his general practitioner complaining of a stiff neck. In September 1990 he returned to his general practitioner complaining of blurring of vision while concentrating at work and of continued neck pain. But thereafter his condition began to deteriorate, as he encountered increasing problems with his leg and his balance. By the end of the year he had begun to experience problems of bladder control. In March 1991 when on a nature trail with his family he was unable to complete the walk and had to sit down.
On 2 April 1991 he discussed these problems with his general practitioner who referred him to the Department of Neurology at the Southern General Hospital in Glasgow requesting an opinion regarding a possible diagnosis of MS. He was seen a month later in the hospital by Dr. I.T. Draper, a consultant neurologist. Various tests were done, and on 11 August 1991 Dr. Draper reported to the general practitioner that the results were strongly in favour of a diagnosis of MS. The appellant was informed on 11 September 1991 that his symptoms were probably due to this condition by a registrar in the hospital. By now his impaired mobility had become more noticeable and he had been assigned to light duties in the police force. In April 1993 he was diagnosed as suffering from depression due to ill-health. On 12 August 1993 the Chief Medical Officer of Strathclyde Police wrote to the appellant's general practitioner to inform him that steps were being taken to retire the appellant from the police force on health grounds. Thereafter his condition continued to deteriorate with tragic consequences for both him and his family. By the end of the following year he was severely disabled by the disease and had become dependant on a wheelchair for mobility. His wife had to give up her part-time work to look after him. Their only source of income was his police pension and his disability allowances.
The possibility that the appellant's disability might be related in some way to the accident was first raised on his behalf by his solicitors in June 1991. By that time he was undergoing tests in the Southern General Hospital. His solicitors wrote to Dr. Draper on 25 June 1991 requesting a report on his treatment and confirmation that his injuries and condition were directly related to the accident. On 14 October 1991 Dr. Draper provided them with a report in which he said that, while MS was an illness which does occur spontaneously, there had been speculation for many years as to whether it might be provoked or caused to relapse by trauma. He concluded his report by saying that there was clear evidence of damage to the brain and the brain stem of the kind which was associated with MS and that, while proof was not possible to come by, it was reasonable to assume a causal relationship between the occurrence of the MS and the injury which the appellant had sustained on 11 April 1990 when he was in the police van. On 9 February 1993 Dr. William Durward, a consultant neurologist at Glasgow Royal Infirmary, prepared a report for the appellant's solicitors in which he said that, having examined the appellant and read Dr. Draper's report, he agreed that the appellant had MS and that he considered on balance of probability that there was a link between trauma sustained on 11 April 1990 and its subsequent development. On 29 March 1993 the appellant commenced these proceedings in which he claimed damages against the Chief Constable.
The proceedings in the Court of Session
By the time when the appellant's case came to proof before the Lord Ordinary, Lord Dawson, in June 1995 the Chief Constable had admitted liability for the accident. The issue between the parties on the pleadings was focussed by the appellant's averments on the one hand that MS is a condition which may be provoked by trauma and that the trauma to his head, neck and shoulders in the accident of April 1990 had resulted in the development of his MS, and by the Chief Constable's averments on the other that MS is not a condition that is caused or influenced by trauma and that any trauma sustained by the appellant in the accident of April 1990 did not cause his MS.
Dr. Draper and Dr. Durward both gave evidence in support of the appellant's case, but they made it clear that they were not qualified to engage in a detailed debate on this subject as their primary concern had always been with the practical problems relating to the diagnosis and treatment of MS. In this situation detailed evidence on the critical issue as to the causal relationship, if any, between the appellant's accident and his development of the symptoms of MS was left to two rival teams of eminent expert witnesses. The appellant's experts were Professor Peter Behan, Professor of Neurology at the University of Glasgow, and Dr. Charles M. Poser of the Harvard Medical School and Beth Israel Hospital, Boston. Those for the Chief Constable were Professor D.A.S. Compston, Professor of Neurology at the University of Cambridge, Professor William A. Sibley, Professor of Neurology of the University of Arizona and Dr. Leonard T. Kurland, Senior Consultant at the Mayo Clinic, Rochester, Minnesota.
It was not possible to complete the proof in June 1995 and further evidence was held in December of that year. On 6 November 1996 the Lord Ordinary pronounced an interlocutor in favour of the appellant and awarded him £547,250 as damages. The Chief Constable reclaimed, and on 5 March 1998 the First Division (the Lord President, Lord Prosser and Lord Caplan) allowed the reclaiming motion with the result that the appellant's award was reduced to £1,500 which was agreed as the solatium due to him for the injuries which he received in the accident: 1998 S.C. 548. The appellant has now appealed to your Lordships' House against the First Division's interlocutor.
It is necessary at this point to mention two features of the way in which this case was dealt with in the Court of Session, as they have had a profound bearing on the nature of the material which is before your Lordships in this appeal. The first is that, while the Lord Ordinary's opinion provides a useful and accurate summary of the factual background and of the evidence given by the expert witnesses, it lacks any analysis of their evidence. Much of it was the subject of detailed criticism by the witnesses on both sides. But it is impossible to tell what the Lord Ordinary made of those criticisms as he has failed to explain the grounds on which he decided to accept some parts of the evidence and to reject other parts, as he must have done in order to find the appellant's case proved. There is no indication that he based his decision to any extent on the demeanour of the witnesses when they were giving evidence, although he noted - as is indeed obvious from the transcript - that Professor Behan and Professor Compston in...
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