Dudarec v Andrews and Others

This is an appeal from a judgment of Simon J handed down on 15 February 2005 in which he endeavoured to deal with a preliminary issue in the appellant's claim for damages against his former solicitors.

The appellant was injured in a road traffic accident in Shrewsbury on 20 ^th October 1982. He was asleep in the back of a stationary van when another vehicle driven by a Mr Johnson ran into the back of it. Mr Johnson's insurers admitted liability for the accident by letter of 16 ^th November 1983 and legal proceedings were issued on 30 ^th May 1984. On 5 ^th June 1996 that action was struck out for want of prosecution. On 29 ^th May 2002 the present action was begun against the respondents in which the respondents have admitted liability.

All that remained of the action against Mr Johnson was an assessment of damages, which in the result never took place. All that remained of the action against the solicitors was the assessment of damages to be assessed by reference to what damages the appellant would have recovered against Mr Johnson. Now some 23 years after the original accident, no damages having been assessed, we are concerned with a preliminary point thought to be a short cut in the assessment in the present action.

In part the delay in both sets of proceedings has been due to a mitigation issue which it was not for many years easy to resolve. The appellant had been severely injured in the accident, having been thrown out of the back of the van and on to the roadway. He was diagnosed with having minor head injuries and scalp lacerations, undisplaced fractured sternum, compression fracture of the fourth and fifth vertebrae and possible whiplash injury of the cervical spine. He had to lie on his back for about six weeks. But, unknown initially was the fact that the claimant had also sustained what was for many years thought to be a false traumatic aneurysm of the left carotid artery. This injury was discovered in about May 1983 after the appellant experienced symptoms of turbulence in his neck while in Australia. The diagnosis of false aneurysm of the left carotid artery was first made in July 1983 by a vascular surgeon in Queensland, Dr Love. Since July 1983 the appellant has not worked or has certainly not worked in the same way as he worked prior to his accident.

A key issue in the litigation between the appellant and Mr Johnson was whether the appellant should have had surgery to correct what was thought by all vascular surgeons who advised between 1983 and 2004 to be the false traumatic aneurysm. Surgery would normally be recommended but prior to surgery the nature and extent of any abnormality would have to be ascertained. In the early 1980s the investigation would be by a per femoral aorta-gram (PFA) in which a catheter is introduced via the femoral artery; from about 1984 a different but lower resolution procedure – an intravenous digital subtraction angiogram (IVDSA) was available; and from about 1991, non-invasive high resolution procedure has been used – the duplex ultrasound scan (the duplex scan) . In 1984 the appellant had an IVDSA by which the radiologist concluded that he had "a probable traumatic pseudo-aneurysm left common carotid proximal to the bifurcation".

The appellant was a vet and had done a great deal of research from which he discovered that his condition was very rare. Very few surgeons had carried out more than one or two operations on aneurysms of the carotid artery. He was always concerned as to the risk of having a PFA and always concerned as to the risk of surgery although putting it in general terms the advice from surgeons was that the risk was no greater than 1% for the PFA and less than 1% for surgery.

In 1991 he had a duplex scan and Mr Walker (later Professor) interpreted the same as showing an 80% stenosis (i.e. narrowing) of the artery. He advised that although the appellant had remained asymptomatic he ran the risk of a transient cerebral ischaemic attack and/or major stroke; he said the aneurysm would be bound to get bigger; and he was of the view that the risks of surgery were far less than the risks of doing nothing. This latter view had been the view of the many vascular surgeons who had advised over the intervening years; the detail is set out in the judgment of the judge but it is unnecessary to rehearse the same in this judgment. Their view was that without an operation the appellant was unfit for heavy work as a vet but that the aneurysm would not prevent him doing light work with small animals.

In October 1993 Counsel advised the appellant that he should obtain the advice of Mr Marcuson in order to resolve the issue of whether the appellant's refusal to have an operation on the lesion was unreasonable. Mr Marcuson did not examine the appellant or request a further duplex scan. He accepted that because the aneurysm had not significantly enlarged over the 12 years there was a case for "temporisation"; but he advised the 80% stenosis was "very worrying and the risk of occlusion very significant", and said "his own advice would certainly be to accept the risks of surgery which are probably of the order of 1%….All experienced vascular surgeons are adept at carotid endarterectomy and I would consider that a small mid-common carotid artery aneurysm to be no more difficult than that procedure".

The case on behalf of Mr Johnson was thus that since the risk in having such surgery was low, and once surgery had been completed successfully the appellant would be able to work as previously, in refusing to have surgery the appellant was failing to mitigate his loss. Before that issue could be tried out the case against Mr Johnson was struck out.

10. In the litigation between the appellant and the solicitors the solicitors unsurprisingly raised the issue that the damages which would have been recovered from Mr Johnson would have been reduced by the failure to mitigate.

On 11 ^th March 2003 Deputy Master Hoffman at a case management conference took the view that there was a preliminary issue that might be tried, which would assist in the resolution of the assessment of damages due to take place. He directed that:-

"The issue of whether the claimant should have had an operation for a carotid artery bypass, and if so by when, be tried as follows:

(1) before a judge

(2) with the trial of the issue to take place within the period 1 ^st January 2004 and 1 ^st April 2004 . . ."

He gave further directions in relation to the service of witness statements, experts' reports etc.

The trial of the preliminary issue did not come on within its trial window. It was then in August 2004 that Professor Greenhalgh obtained a further duplex scan. Radiologists interpreted that scan and Professor Greenhalgh advised that the 80% stenosis had been the result of a misinterpretation and that in fact there was a relatively minor 25–30% stenosis. The appellant did not have a false aneurysm after all. The appellant did not need an operation and indeed could work in precisely the same way as he had worked before.

Once the scan and the interpretation thereof was shown to Mr Marcuson he concurred in the view expressed by Professor Greenhalgh.

It now being clear that the appellant did not need an operation, those representing the defendant solicitors thought that a variation to the preliminary issue was required. In place of that which had been ordered by the Deputy Master they applied, and with the consent of those representing the appellant it was ordered, that the preliminary issue to be tried should be in the following terms:-

"Has the claimant failed to mitigate his loss; (1) by his refusal to contemplate having any medical treatment (and if so what treatment) and/or an operation for a carotid artery bypass and, if so, when should the claimant have had such medical treatment and/or an operation (as the case may be) and/or; (2) by his not having worked after it was appropriate for him to return to work and, if so, when should the claimant have returned to work."

In Tilling v Whiteman [1980] AC 1 Lord Scarman described preliminary points of law as being "too often treacherous shortcuts. Their price can be delay, anxiety and expense"; what is true of points of law is even more true of points of mixed law and fact. It can of course sometimes be beneficial to try an issue where there is a clear demarcation between it and other issues; that can often be the case in relation to liability being tried separately from damages. To try one issue relating to the quantification of damage, particularly where the quantification relates to loss of a chance, must stand a very grave risk of being a long way round, and so it has turned out to be. Consider in this instance the second question – when should the claimant have returned to work? Unless both sides were agreed that the determination of one factual issue would provide the answer to that question, it is quite unsuitable as a preliminary issue. Even if the question was understood as it indeed was, to be referring to whether it was reasonable not to work by reference to the condition of the appellant's carotid artery, there were other factors in this case which...