Dingley v Chief Constable of Strathclyde (No.1)
| Jurisdiction | Scotland |
| Judgment Date | 05 March 1998 |
| Docket Number | No 60 |
| Date | 05 March 1998 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
LORD DAWSON
Evidence—Opinion evidence—Medical evidence—Experts differing on whether multiple sclerosis caused as a result of whiplash injury sustained by pursuer—Whether Lord Ordinary erred in favouring evidence of pursuer's experts—Assessment of expert evidence—Balance of probabilities—Circumstances in which appeal court entitled to assess evidence de novo
Reparation—Negligence—Road traffic accident—Causation—Pursuer suffering from multiple sclerosis allegedly as a result of sustaining whiplash injury in road traffic accident—Whether multiple sclerosis caused by negligence of defender—Conflicting expert medical evidence—Balance of probabilities
A police officer was injured in a road traffic accident. He brought an action against his chief constable who accepted liability. The pursuer sustained a whiplash injury and alleged that multiple sclerosis ensued as a result of that trauma. He led various experts to say that a link ensued between the trauma and the onset of multiple sclerosis. The defender led evidence that the onset of multiple sclerosis was purely coincidental and could not, on balance of probabilities, relate to the trauma. After proof, the Lord Ordinary (Dawson) found in favour of the pursuer and awarded damages of £547,250. His Lordship held that he did not see it as part of his function to make any pronouncement of scientific truth but that, on balance of probabilities, it had been proved that the trauma had at least triggered off the multiple sclerosis. He based this conclusion on the historical, analytical and experimental evidence led by the pursuer. The defender reclaimed.
Held (rev judgment of Lord Dawson) (1) that the Lord Ordinary had failed to give sufficient explanation as to how he came to favour the evidence for the pursuer and to reject the evidence of the defender and, although his Lordship had been correct to state that he was not to make a pronouncement of scientific truth, as the evidence disclosed a medical controversy, he had to explain how that controversy impinged on his view and, if not at all, why; (2) that the Lord Ordinary had failed to analyse the conflicting evidence or to explain why he had accepted some parts of it and rejected other parts, so that the matter was open for the appeal court to assess the evidence de novo;(3) that, although the experts referred to a standard of scientific proof, that standard was different to the one applicable in civil litigation, for to a court, a fact was proved if the court held that it was more probable than not to be the case, even if it was only marginally more probable, whereas scientific experts required a much higher standard before they held that something had been established; (4) that, although there was a substantial body of reports of cases where the patient experienced a trauma of some kind, not very long before he developed the first symptoms of multiple sclerosis, they could not of themselves prove that the injury caused the onset of the symptoms and one way of testing whether they were simply examples of coincidences or were actually part of a significant pattern was, as here, by epidemiological studies; (5) that those studies failed to support the idea that there was a significant relationship between trauma of any kind, including head injuries, and the onset of symptomatic multiple sclerosis; (6) that even if no such pattern could be detected in epidemiological studies, support for a causal relationship might be found in scientific studies which showed how trauma could play a role, but the evidence of experiments on animals, relied upon by the pursuer, failed to provide material support for that contention; (7) that, on a balance of probabilities, the pursuer had already had the disease for some time before the accident and before it became symptomatic so that the question was whether, taking the anecdotal evidence, the experimental evidence and the theoretical evidence together, the pursuer had established on balance of probabilities that trauma, and in particular trauma to the spinal cord, triggered the onset of symptomatic multiple sclerosis and not whether the injury caused the pursuer to develop the disease in the first place; (8) that, taking into account the studies relied upon by the pursuer, which had been done before the advent of MRI scanning and failed to explain why a mild trauma might cause multiple sclerosis while more significant traumas such as brain surgery or lobotomy neither exacerbated existing multiple sclerosis nor caused the development of multiple sclerosis plaques, it was not proved on a balance of probabilities that trauma in general, or whiplash injury in particular, could trigger the onset of multiple sclerosis; and reclaiming motion allowed; and agreed damages of £1,500 awarded.
Davie v Magistrates of EdinburghSC 1953 SC 34(dicta of Lord President Cooper at p 40); Thomas v ThomasSC1947 SC (HL) 45 (dicta of Lord Thankerton at p 54) applied.
Per Lord Prosser (1) that with the exception of the epidemiological evidence, the evidence established that trauma could trigger multiple sclerosis, but fell short of showing that the pursuer's onset was a case of such triggering; (2) that, in each field of evidence, the points founded upon by the pursuer were weakened by the doubts raised by the defence witnesses; by the possibility, in every case, of alternative explanations; and by the absence of analogous findings in apparently analogous situations; (3) that, on the general question of whether trauma could cause the onset of symptomatic multiple sclerosis, reliance was substantially made upon the difference between legal, marginal “proof” and what constituted “real” proof; (4) that this case was far from the latter and, although, the cumulative effect of the pursuer's evidence outweighed that of the defender's, the conclusion on the general question was not enough for the pursuer for coincidences occurred and there was no basis for treating coincidence as rarer or as less likely than traumatic cause in this case.
Opinion (per Lord Caplan) that were it shown that a degree of neck trauma was a well recognised facilitator of multiple sclerosis then, given that the pursuer sustained quite a serious shaking-up in his accident and the fact that he had some neck injury immediately after the accident, coupled with some such neck injuries being a known trigger of multiple sclerosis, the combination of circumstances, including the temporal factor, would be rather too much of a coincidence and the probability would be that that injury had caused multiple sclerosis.
Observed (per the Lord President (Rodger)) that it was unnecessary to accept the conclusions reached by the defender's experts as it was enough that, after examining all the evidence, there was sufficient doubt about the pursuer's case to hold that it was proved on balance of probabilities.
Nicholas Mark Dingley brought an action of reparation for damages against the chief constable, Strathclyde Police in respect of injuries allegedly sustained as a result of a road traffic accident in April 1990 when the pursuer was engaged in the course of his employment as a police officer with Strathclyde Police. The facts and circumstances, so far as material, are as set forth in the opinions of their Lordships in the First Division. Liability was admitted and the cause called for a proof on quantum before the Lord Ordinary (Dawson).
At advising, the Lord Ordinary awarded the pursuer £547,250. The defender reclaimed.
Cases referred to:
Bogota (SS) v SS AlcondaENR 1923 SC 526
Davie v Magistrates of EdinburghSC 1953 SC 34
Ikarian Reefer (The) [1993] 2 IRLR 68
J (Re) (A Minor) (Child Abuse: Expert Evidence) [1991] FCR 192
Kay's Tutor v Ayrshire and Arran Health BoardSC 1987 SC (HL) 145
Loveday v Renton and Wellcome Foundation Ltd [1990] 1 Med LR 117
Rhesa Shipping Co SA v EdmundsWLR [1985] 1 WLR 948
Stephen v Scottish Boatowners' Mutual InsuranceSC 1989 SC (HL) 24
Thomas v ThomasSC1947 SC (HL) 45
Textbooks etc referred to:
Bamford et al, “Trauma as an etiologic and aggravating factor in multiple sclerosis” (1981) Neurology vol 31, pp 1229–1234
Gonsette et al“La pérméabilité des vaisseaux cérébraux VI Démyélinisation expérimentale provoquée par des substances agissant sur la barriére hémato-encéphalique” (1966) Acta Neurologica Belgica vol 66, pp 247–262
McAlpine & Compston, “Some Aspects of the Natural History of Disseminated Sclerosis”, Quarterly Journal of Medicine (New Series) vol 21 (1952) pp 135–167
McAlpine on Multiple Sclerosis, A Re-Appraisal (2nd edn, 1965) pp 76–77
Oppenheimer “The Cervical cord in Multiple Sclerosis” (1978) Neuropathology and Applied Neurobiology, vol 4, pp 151–162
Poser, “The role of trauma in the pathogenesis of multiple sclerosis: a review” (1994) Clinical Neurology and Neurosurgery (1994) vol 96, pp 103–110
Poser, “Trauma and multiple sclerosis: an hypothesis” (1987) Journal of Neurology, vol 234, pp 155–159
Riechert et al, “Pathologic-anatomic findings and cerebral localization in stereotactic treatment of extrapyramidal motor disturbances in multiple sclerosis” (1975) Conf Neurol vol 37, pp 14–40
Sibley et al, “A prospective study of physical trauma and multiple sclerosis” (1991) Journal of Neurology, Neurosurgery and Psychiatry, vol 54, pp 584–589
Sibley, “Physical trauma and multiple sclerosis” (1993) Neurology, vol 43, pp 1871–1874
Siva et al, “Trauma and multiple sclerosis: A population-based cohort study from Olmsted County, Minnesota”,(1993) Neurology, vol 43, pp 1878–1882
Sunka & Kurland, “Multiple sclerosis and trauma” (1994) Neurology vol 44, p 2416 Vinken et al (eds), Handbook of Clinical Neurology (1985), vol 3, p 64 [sv Kelly, “Clinical aspects of multiple sclerosis”]
The reclaiming motion called before the First Division, comprising the Lord President (Rodger), Lord Prosser and Lord Caplan for...
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